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CCPA Notified Guidelines on Dark Pattern Mitigation

Context:

The Central Consumer Protection Authority (CCPA), India’s top consumer watchdog, has recently notified guidelines for prevention and regulation of Dark Patterns, 2023.

Relevance:

GS III: Science and Technology

Dimensions of the Article:

  1. About Dark Patterns
  2. Regulatory Framework Against Misleading Practices
  3. Central Consumer Protection Authority

About Dark Patterns:

  • In 2010, the British user experience researcher Harry Brignull introduced the term “dark patterns.”
    Although profit-driven dark patterns had started to emerge by then, consumers were not fully aware of the consequences related to their privacy, as well as the expenditure of their time, energy, and money.
  • Examples of these dark patterns have now become widespread. They include the automatic selection of travel insurance when booking flight tickets, the obligatory requirement to provide email addresses or phone numbers to access e-commerce websites, which are subsequently used for unsolicited text messages or emails that are difficult to block, and birthday greetings designed to encourage users to purchase gifts for themselves.
  • In today’s era, characterized as the Fourth Industrial Revolution, major internet technology companies have systematically amassed the behavioral data of digital users to market their own products or third-party offerings. This has resulted in profits that often surpass the combined Gross Domestic Products of multiple nations.
Global Efforts to regulate dark patterns:
  • With a growing awareness of the excessive profit-driven tactics employed by online e-commerce, governments are rushing to establish regulations for this industry and its trading practices.
COUNTRYEFFORTS
European UnionEuropean Data Protection Board has issued guidelines on how to identify and avoid dark patterns on social media platforms.
United StatesUnited States’ Federal Trade Commission has issued a warning about the “increasing use of sophisticated dark patterns designed to deceive and ensnare consumers.”
Efforts by India:
  • The Indian guidelines provide specific instructions for recognizing and preventing deceptive tactics such as
    • false urgency,
    • stealthily adding items to a shopping cart (basket sneaking),
    • using guilt or pressure to manipulate decisions (confirm shaming),
    • compelling users into actions they may not want (forced action),
    • and ensnaring users in subscription traps on online platforms.
  • According to a 2021 report from the Advertising Standards Council of India, it was estimated that more than half of e-commerce websites employed these dark patterns to promote their products.
  • Up until now, India’s initiatives to oversee this industry have primarily focused on preventing tax evasion and safeguarding the concerns of traditional physical retailers.

Regulatory Framework Against Misleading Practices

Prohibition of Misleading Practices
  • Ban on misleading or coercive dark patterns.
  • Encouragement for ethical sales and user retention strategies.
Scope of Application
  • Applicability to all Indian platforms in the commerce sector, including advertisers and sellers.
  • Inclusion of e-commerce, websites, and apps under the guidelines.
Identified Dark Patterns (as per CCPA Notification)
  • Creating unwarranted urgency or scarcity to prompt immediate purchases.
  • Non-consensual addition of items at checkout leading to increased payments.
  • Employing fear or shame to manipulate user decisions for profit.
  • Mandating additional purchases or personal data sharing.
  • Overcomplicating subscription cancellation and obscuring options.
  • User interface manipulation to deviate users from their initial intent.
  • Providing misleading outcomes contrary to advertised promises based on user interactions.
  • Initial price concealment, with post-confirmation disclosure or conditional service access.
  • Disguising ads as other content to deceive users into engaging.
  • Constant disruptive interactions aimed at profit.
  • Intentionally using perplexing language to confuse users.
  • Inducing recurring payments under SaaS models.
  • Deceiving users into purchasing unnecessary malware removal services through ransomware or scareware.

Central Consumer Protection Authority

  • CCPA is a regulatory body established in 2020 based on the provisions of the Consumer Protection Act, 2019.
  • CCPA works under the administrative control of the Ministry of Consumer Affairs.
Composition:
  • It will have a Chief Commissioner as head, and only two other commissioners as members — one of whom will deal with matters relating to goods while the other will look into cases relating to services.
  • The CCPA will have an Investigation Wing that will be headed by a Director General.
  • District Collectors too, will have the power to investigate complaints of violations of consumer rights, unfair trade practices, and false or misleading advertisements.
Objective:
  • To promote, protect and enforce the rights of consumers as a class.
  • To conduct investigations into violation of consumer rights and institute complaints/prosecution.
  • To order the recall of unsafe goods and services, discontinuation of unfair trade practices and misleading advertisements.
  • To impose penalties on manufacturers/endorsers/publishers of misleading advertisements.
Powers and Functions:
  • Inquire or investigate into matters relating to violations of consumer rights or unfair trade practices suo moto, or on a complaint received, or on a direction from the central government.
  • Recall goods or withdrawal of services that are “dangerous, hazardous or unsafe.
  • Pass an order for refund the prices of goods or services so recalled to purchasers of such goods or services; discontinuation of practices which are unfair and prejudicial to consumer’s interest”.
  • Impose a penalty up to Rs 10 lakh, with imprisonment up to two years, on the manufacturer or endorser of false and misleading advertisements. The penalty may go up to Rs 50 lakh, with imprisonment up to five years, for every subsequent offence committed by the same manufacturer or endorser.
  • Ban the endorser of a false or misleading advertisement from making endorsement of any products or services in the future, for a period that may extend to one year. The ban may extend up to three years in every subsequent violation of the Act.
  • File complaints of violation of consumer rights or unfair trade practices before the District Consumer Disputes Redressal Commission, State Consumer Disputes Redressal Commission, and the National Consumer Disputes Redressal Commission.

-Source: Indian Express


February 2024
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