Dark patterns are the most recent threat to consumer protection laws, thanks to the rapid developments in user interfaces, says the Indian ad industry apex body, the Advertising Standards Council of India (ASCI). So early next year it will issue a code to address these “manipulative tactics” or “dark patterns” often used by digital platforms.
What are these dark patterns? According to ASCI’s discussion paper on the subject, it is a user interface designed to deceive or manipulate consumers into taking actions against their interests, such as purchasing an expensive product, paying more than was first disclosed, giving personal information, basing decisions on fabricated or compensated reviews, and so forth.
According to the paper, these dark patterns come in many forms and are present across platforms. Consumers are becoming more vulnerable to such tactics as online commerce is expanding rapidly. In FY22, 29% of the advertisements processed by ASCI were disguised by influencers as regular content, which is also deemed part of the dark patterns in advertising. Cryptocurrency, personal care brands, fashion, and e-commerce firms are found to be the main offenders.
ASCI has outlined four key practices that it intends to address by expanding its code:
n Drip pricing, where only part of a product’s price is disclosed to potential buyers. The total price is revealed only at the very end of the buying process, thereby creating ambiguity around the final price as well as preventing easy price comparisons. Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers, insist ASCI.
Bait and switch is another such tactic that goads users to take an action expecting, say, outcome A, but instead is served outcome B. For instance, a consumer may select a product offered at a certain price but is thereafter only able to access products at a higher price. Or, an ‘X’ on the top right corner, instead of closing an app, may open up the app, or force the action the user was trying to avoid. ‘X’ is meant to “close” an operation, but in the said interaction, the ‘X’ means “accept/ proceed”.
False urgency creates an impression of limited availability of a product when there is no such shortage.
Then there is disguised advertising, where an ad mimics editorial content. Examples could be influencer posts, paid reviews, and ads placed in a manner that they appear like editorial content. Paid-for messages must clearly disclose that they are ads.
Experts agree there is a thin line between dark patterns and legitimate targeting and persuasion tactics. Manisha Kapoor, CEO and secretary general, ASCI, says such dark patterns are now under sharp scrutiny by ad regulators around the world. Eventually, dark patterns ruin consumer experience and increase abandonments, and make the consumer suspicious of the entire online space. “By choosing fair practices that enhance both consumer and shareholder value, brands can develop sustainable ways of consumer engagement,” she adds.
The body has seen a massive spurt in the complaints concerning digital ads. Today, over 50% of the complaints to ASCI about misleading ads relate to the digital medium.
What if a digital portal is based outside Indian shores and is manipulating Indian consumers? Kapoor says that any ad which is aimed at Indian consumers — whether it is created in the country or outside — will be called out by ASCI.
There won’t be any fundamental change in the way ASCI tackles complaints. “We will continue to seek voluntary compliance. Misleading ads are already a punishable offense under the Consumer Protection Act; the attempt is to make stakeholders aware that there are new and other kinds of misleading ads,” she says.
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