Dark patterns – The Indian government’s proposal to prohibit dark patterns, which are used to trick online users, has been opposed by an industry group that includes several significant U.S. tech companies. The group claimed the action would undermine the state’s commitment to promoting “ease of doing business” in the economy and result in “regulatory overlap” with already-existing laws.
To get feedback on the proposed rules to mitigate deceptive practices by online companies to deceive or manipulate consumers using unethical designs or patterns in their online interface, New Delhi released the draft guidelines (PDF) last month for public consultation for 30 days until Thursday, October 5.
The proposed regulations, according to the Asia Internet Coalition, which represents tech giants like Apple, Google, Meta, Amazon, and X (formerly Twitter), “may stagnate the growth” of the nation’s digital economy. The coalition urged the Indian government to prioritize the self-regulatory framework as the primary tool for limiting the use of dark patterns. The industry association added that the nation’s online platforms are already governed by a number of existing regulations.
“Any attempt to introduce a separate regulatory framework would cause unnecessary regulatory overlap. This overlap will result in divergence across applicable legal frameworks leading to uncertainty in terms of compliance requirements,”. The group expressed its concerns in a thorough note it filed to the consumer affairs department, which had just released the draft guidelines, and said that the overlap would cause divergence across applicable legal frameworks and result in uncertainty over compliance requirements. The group’s website also posted a copy of the note.
According to the group, e-commerce platforms are subject to the Consumer Protection Act 2019 regulations even though online platforms in India are classified as online intermediaries and are overseen by the Informational Technology Act 2000. Similarly, it stated that sector-neutral requirements are covered under the August-released Digital Personal Data Protection Act 2023.
The consumer affairs division held stakeholder consultations on dark patterns in June with e-commerce platforms and law firms among them. Dark patterns were raising concern and needed prompt response, according to the department’s report on the discussion.
The government then established a task force with representatives from trade organizations, e-commerce platforms, and online businesses, such as Google, Flipkart, Reliance Industries, Amazon, Go-MMT, Swiggy, Zomato, Ola, Tata CLiQ, Facebook, Meta, and Shiprocket, which resulted in the release of the draft guidelines.
Asia Internet Coalition advised the Indian government to follow the example set by the European Union, which is attempting to control the use of dark patterns. It was further recommended that, if the consumer affairs department saw the need to establish a distinct framework, the legislation should be industry- and medium-neutral and apply to both offline and online material and advertisements, rather than just the latter.
The organization added that the department should provide the proposed rules a “sufficient buffer period between the publication and implementation” and not begin enforcing them right away. The IT Act’s safe harbor provisions were also requested to be protected, and it was said that e-commerce marketplaces and other online intermediary platforms “should not be held responsible for the dark patterns that may be present in third-party content and advertisements hosted by them.”
“At present, the Draft Dark Pattern Guidelines provide for a blanket provision requiring that no person including platforms should engage in any dark pattern. However, such a blanket provision would raise serious concerns for online intermediaries,” the organization claimed.
In order to “adequately address” cases of dark patterns showing up through disguised adverts, including endorsements from influencers and celebrities, it has also asked the consumer affairs department to define “endorser” in the guidelines.
The government listed some of the recognized dark patterns as fake urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch, and drip pricing. The group claimed that current regulations, such as the Consumer Protection Act, as well as internal policies of platforms and digital service providers already deem the actions suggested by these patterns to be “unfair.”
India, the second-largest internet user population in the world after China, is a key market for international online platforms. But the government, which is led by Prime Minister Narendra Modi, is tightening market restrictions in response to the growing internet population.
The Digital India Act, which is likely to be introduced for public consultation soon, is the proposed replacement for the government’s over two-decade-old IT law. The proposed regulation is expected to address some of the issues with dark patterns, as well as new guidelines for data management and cybersecurity, as well as cutting-edge technology like blockchain and artificial intelligence.