Dark patterns are a phenomenon that came to light with the advent of information technology. It is a term coined by Harry Brignull, who explains that Dark Patterns are deceptive or manipulative methods of user interface design (UI) that influence user behavior and manipulation without consent, leading to unwanted consequences that benefit the organizations that aid them. This is seen due to the growing dependence on digital platforms and non-tangible property. While they may seem harmless, they can lead to substantial legal and ethical issues, especially in intersection with Intellectual Property Rights.?
The intersection of Dark Patterns and Intellectual property Rights is an emerging trend and evolving phenomena in the advent of the digital landscape. It includes acts such as deceptively influencing and tricking consumers into subscribing, purchasing, signing up or disclosing personal data without their consent. Thus, it has become an intrinsic part of the digital landscape, becoming a threat to many Intellectual Property Rights (IPR). ?
INTERSECTION OF IP AND DARK PATTERNS:
Dark patterns not only deceive and undermine user rights through the user interface, but they also impede intellectual property rights, such as copyright law, patent law, and trademark law.
- Copyright law is a type of intellectual property that protects the author's “original work” and grants monopoly once it is expressed. It includes website designs, user interfaces, and other features of the website or software. These works are protected and can only be exploited by others if authorized by the owner, which is done through licensing and assignment. Only authorized owners and users have the sole rights to ‘reproduce, distribute, and exhibit their work’. These rights are being threatened using dark patterns, creating ethical, moral, and legal concerns. Dark Patterns are infringing copyright by deceptively using other entities’ websites, apps, layout designs and UI and misleading the users into believing it’s the author’s work and breaching the author’s original work, thus not only violating the rights of the copyright owners but also deceiving the users into subscriptions, purchasing misrepresented goods and services and disclosing personal information under false pretext.
- Trademark Law protects the brand name, logos, and other subject matters that make an entity distinct from another. However, Dark Patterns may mislead and confuse the consumer by using their logo or brand name to manipulate them to believe that they are engaging with the original reputed entity. This not only affects the goodwill of the brand but also leads to infringement, dilution and passing off of the trademark. Dark Patterns can deceive consumers with false endorsements or associations into buying in-authentic goods and can lead to an unfair gain for the infringer while also hampering the reputation of the infringed brand. Furthermore, dark patterns frequently include strategies that copy the trade dress, domain names, layouts and other forms of ‘cybersquatting.’
- Other IPs: looking into Patents, under which protection is given to inventions with the subject matter of ‘novelty, non-obviousness and industrial application’. Furthermore, user interface design can be patented if it satisfies the criteria mentioned above and is unique and provides a unique technical effect. Looking at the Design Act, graphical user interfaces (GUIs) can be protected under this act. Through the use of Dark Patterns, one can use user interface designs and GUI’s of another reputed entity to deceive the users into believing it’s theirs. Furthermore, one can get legal protection for a manipulative design under the acts above, leading to moral and ethical dilemmas.
LEGAL FRAMEWORK OF DARK PATTERNS:
The legal framework of Dark Patterns in India is multifaceted and falls under various legislations, regulations, and judicial precedents that emphasize deceptive patterns, safeguard consumer rights, and ensure cybersecurity. To begin with, there are:
- Guidelines for Prevention and Regulation of Dark Patterns, 2023: A Central Consumers Protection Authority notification. Section 2(1)(e) “It defines it as a platform or interface which misleads consumers into making a decision they don’t want to, which further manipulates them and leads to unfair trade practices, mal advertising and breach of consumer rights”[1]. It also specifies it as: “1) False Urgency 2) Basket Sneaking which is adding additional products/services to cart, 3) confirm shaming, 4) Subscription Trap) Interface Interference, which manipulates users by highlighting certain information on purpose, 6) Subscription Trap, 7) Bait and Switch, 8)Disguised advertisement, 9) Rogue malware which tricks a user into believing there is virus in their system. 10) Trick questions and Nagging.
- Information Technology Act, 2000: it has provisions relating to cybercrime; it does not explicitly mention dark patterns; however, it includes provisions relating to it, such as Section 43[2], Penalty and Compensation for damages to Computer System, through unauthorized access, Section 66 Computer-related offences including data theft and identity theft, Section 66D cheating by Personating using digital interface to manipulate users, section 72A is Punishment for Disclosure of Information through breach of contract leading to violation of privacy and exploitation of data. Section 79 provides that intermediaries, although exempted from liability for third-party liability, must still conduct due diligence and remove unwanted content from their digital platform.
- Consumer Protection Act, 2019 (CPA) and “Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 have laid penalties for misleading/false advertisements, which can include Dark patterns and lead to violation of consumer rights”[3]. Under CPA, manipulating the user into making certain decisions can be deemed unfair Trade practices.
- Digital Personal Data Protection Act,2023(DPDP) has significant implications for Dark Patterns as it involves manipulating personal data for malpractices and misuse without users' informed consent. Thus, this act emphasizes Informed Consent and Deceptive techniques, which deceive and trick users into sharing data, which can be seen as a violation of this act and be considered cybercrime.
In conclusion, Dark Patterns are an emerging trend of deceptive techniques and a challenge in the digital era, giving rise to legal and ethical concerns, which call into question the ethical basis of user interface designs. There is a lack of legal framework surrounding dark patterns in India, and more legislation is needed to address the fears of dark patterns emerging as a threat to IPR. In the era of globalization and information technology, the user interface and information technology are ever-expanding in India; thus, policymakers, consumers, and legal experts must collaborate and draft rules and regulations to combat the deceptive patterns and cybercrimes that are rising due to them.
This article was written by : SUMEDHA JAMWAL (INTERN) [Symbiosis Law School]
?[1] Central Consumer Protection Authority Notification, New Delhi, 9th June 2022.
?[2] Section 43 of The Information Technology Act, 2000 Act NO. 21 OF 2000
?[3] Central Consumer Protection Authority Notification, New Delhi, 9th June 2022
