C&M E-ALERT: The Guidelines for Prevention and Regulation of Dark Patterns, 2023

WHAT HAS HAPPENED?

SCOPE AND APPLICABILITY

As per the Guidelines, "dark paterns" are any decep􀆟ve design tac􀆟cs employed within the UI/UX across various digital pla􀆞orms. These tac􀆟cal designs aim to mislead or manipulate users into ac􀆟ons contrary to their original intent, impac􀆟ng the consumer’s autonomy, choices, and decision-making.

Such prac􀆟ces cons􀆟tute instances of misleading adver􀆟sements, unfair trade prac􀆟ces, or viola􀆟ons of consumer rights under the CPA.

The guidelines are applicable to:

SPECIFIED DARK PATTERNS

CONCLUDING REMARKS

The rollout of these Guidelines represents a significant move towards enhancing consumer trust and fairness in digital interactions and indicates an increasing inclination of the authorities to regulate the digital space. While the Guidelines were issued aer the Advertising Standards Council of India’s (ASCI’s) guidelines on this issue (Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, released in 2022), they are backed by the force of law and require stakeholders to refine their UI/UX and marketing strategies to ensure that they are not engaging in dark patterns.

Although Annexure I of the Guidelines provides an illustrative list, the definition of dark patterns is broad and will require careful assessment of UI/UX to determine if a particular design is a dark pattern. The implementation is made more complicated by the wide applicability of the Guidelines to not just sellers and advertisers but also platforms. This is a me taking process and the Guidelines provide no lead me for implementation.

The Guidelines also overlap with the Digital Personal Data Protection Act, 2023 (DPDP Act) and the upcoming Digital India Act since the use of dark patterns could arguably impact consumer consent. It would have been prudent if internationally acceptable privacy standards such as “Privacy by Design” were part of the Guidelines as this would remove the overlap and allow for both sets of regulations to work well together.

Ultimately, how much the Guidelines are able to tackle the dangers of dark patterns would depend on the enforcement of the Guidelines and the effectiveness of the enforcement mechanism under the CPA and complementary laws.

In case of feedback, suggestions, or queries, please reach out to the C&M team on tmt@chandhiok.com