The Dark Patterns of E-commerce

Introduction

E-commerce is one of the next big things expected to happen riding on the growth of the usage of internet. It’s growing at a furious pace and expected to touch US$ 600 bns. in a very short time. Given the risks attached to estimating or guessing, even if the figure of US$ 600 bns. Is an overestimate, the growth is expected to be substantial. The business is evolving and spreading fast from metros to smaller centres. Unfortunately, as the business is growing, the negative aspects in the form of unethical business practices have also surfaced. These practices have been named ‘dark patterns’. There is a concern growing in the official circles and attempts are being made to rein in these practices.

The statutes relevant to the topic

Before going into the subject of dark patterns, the following are the steps by which the relevant statute has undergone changes. The relevant ministry is the Ministry of Consumer Affairs, Food and Public Distribution. The developments are:

1)???? The Consumer Protection Act of 2019 replaces the Consumer Protection Act of 1986;

2)???? The Consumer Protection (E-commerce) Rules, 2020 is passed under the statute of 2019; and

3)???? The Ministry issues “Draft Guidelines Draft Guidelines for Prevention and Regulation of Dark Patterns, 2023 on 6th September, 2023. Draft Guidelines for Prevention and Regulation of Dark Patterns 2023.pdf (consumeraffairs.nic.in)

Definition Of Dark Patterns

Clause 2(e) of the draft guidelines defines ‘dark patterns’ to mean “…… any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform; designed to mislead or trick users to do something they originally did not intend or want to do; by subverting or impairing the consumer autonomy, decision making or choice; amounting to misleading advertisement or unfair trade practice or violation of consumer rights”. Annexure 1 to the Guidelines issued by the Ministry lists 10 Specified Dark Patterns.

The Origin of the term

In order to give a background to the topic and to introduce it, I would like to quote from the article “Dark Patterns at Scale: Findings from a Crawl of 11K Shopping Websites” authored by a team of seven contributors to the research paper. Of the seven, six are from the Princeton University, USA and one from the University of Chicago. ?It is a 32 page document and comprises the findings from an extensive research and dated 20th September, 2019. (referred to as “The Study” for the reminder of this post) (Dark Patterns at Scale: Findings from a Crawl of 11K Shopping Websites (arxiv.org)

The Study

Paragraph 2.2 headed as “Dark Patterns in User Interface Design” talking of the origins has this to say. “Coined by Brignull in 2010, dark patterns is a catch-all term for how user interface design can be used to adversely influence users and their decision-making abilities. Brignull described dark patterns as ‘tricks used in websites and apps that make you buy or sign up for things that you didn’t mean to’, and he created a taxonomy of dark patterns using examples from shopping and travel websites to help raise user awareness. The taxonomy documented patterns such as ‘Bait and Switch’ (the user sets out to do one thing, but a different, undesirable thing happens instead), and ‘Confirmshaming’ (using shame tactics to steer the user into making a choice)”.

As one could see, a very serious attempt has been made to identify these obnoxious practices ever since Brignull made a formalized study of the subject. Subsequently, the work was carried on by others. The Study is probably one of the most exhaustive studies conducted on the topic. Page 12 lists a total of 15 practices with a detailed commentary on each of them in the subsequent pages. (no attempt is made in this post to draw a comparison between “The Study” and the guidelines issued by the Ministry and the reason why as opposed to fifteen practices listed in the Study, the guidelines list ten).

Conclusion

As we know, several businesses have their own e-commerce platforms for marketing and selling their own products and services whereas there are third party platforms such as Amazon, Flipcart etc., which offer only a facility for buyers and sellers to come together. It would be interesting to see if these organizations have any meaningful audit to ensure that these practices are identified as a practice of self-regulation. One would think that, especially, for owner-driven platforms it would be an issue in Governance and that in their own interests they should carry out a periodical audit to identify how the public perception stands. That would be a reputation-enhancer in the marketplace.

The Study is the result of examining 11,000 websites and merits a serious reading by those concerned with e-commerce.

#darkpatterns #e-commerce