Introduction
Feelings of anxiety over items left in an online shopping cart, or the hesitation to close an advertisement promoting a ‘rare’ opportunity, are common but not merely incidental occurrences. These result from the deliberate use of sophisticated digital techniques known as “dark patterns”. Dark patterns are deceptive digital designs intended to manipulate user behavior. These designs trick users into actions they would not otherwise take, and prioritize company gain over user interests.
The term ‘dark patterns’ was coined by Harry Brignull, who defined it as “tricks used in websites and apps that make you do things you didn’t mean to, like buying or signing up for something.” In essence, dark patterns obfuscate user choices and nudge them towards predetermined outcomes. The Central Consumer Protection Authority (‘CCPA’) recently took a significant step in this direction by notifying the Guidelines for Prevention and Regulation of Dark Patterns (‘the Guidelines’) on November 30, 2023.
This article delves into the psychological and cognitive underpinnings of dark patterns, unveiling the subtleties of these deceptive tactics. Additionally, it examines the effectiveness and relevance of the CCPA guidelines in mitigating their use.
The Ambit of Dark Patterns under CCPA Guidelines
India’s regulatory landscape has taken a significant step forward with the establishment of a formal definition for “dark patterns” under Clause 2(e) of the Guidelines. Annexure 1 of the Guidelines specifies 13 dark pattern practices, along with illustrations for guidance, which are: false urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch, drip pricing, disguised advertisement, nagging, trick question, SaaS billing, and rouge malwares.
The Guidelines come as a welcome step in addition to the Guidelines for Online Deceptive Design Patterns in Advertising issued by the Advertising Standards Council of India (ASCI) in June 2023. They also add a number of new dark patterns in addition to the 4 specified by ASCI. The extensive scope of the Guidelines not only underscores a commitment to safeguard consumer rights, but also sets a precedent for other jurisdictions to emulate.
As the author delves into the psychology behind dark patterns, it becomes imperative to comprehend the fundamental cognitive mechanisms that make them so effective. Understanding the triggers that dark patterns exploit will reveal why consumers easily fall prey to them and how designers can navigate the user interface ethically to instill trust and transparency.
Deception by Design – Understanding Dark Patterns
Dark patterns leverage well-documented cognitive biases and principles of behavioral economics to subvert rational decision-making. Common tactics associated with the same include invoking a sense of urgency, exploiting the Fear of Missing Out (FOMO). These designs prey on inherent human weaknesses and vulnerabilities and effectively divert users from making well-informed choices.
A 2019 report from Princeton University underscores the prevalence of dark patterns. Analyzing over 11,000 websites, researchers exposed dark patterns in nearly 11% of them, employing as many as 15 distinct tactics. These designs exploit fundamental human tendencies and biases, effectively steering users towards predetermined outcomes.
Heuristics and the Genesis of Cognitive Biases
Central to the manipulative nature of dark patterns lies the psychological concept of heuristics. These mental shortcuts or “rules of thumb” facilitate faster decision-making under a subset of limited information. Jakob Nielsen’s 10 Usability Heuristics for User Interface Design are widely adopted in the field of User Experience (UX) to enhance user interaction with digital platforms. Dark patterns, however, exploit these heuristics and the cognitive biases they give rise to in order to deceive and manipulate users.
The heuristics and biases approach, pioneered by Tversky and Kahneman, provides a comprehensive framework for understanding systematic deviations from rational choice behavior.. One such example is the framing effect, wherein people react differently based on whether something is presented as a loss or a gain. Loss aversion, another prevalent bias, describes the human tendency to prioritize avoiding losses over acquiring equivalent gains. Psychologists and behavioral economists have identified several other cognitive biases, including default bias, scarcity bias, and the social norm effect. Default bias refers to an individual’s inclination to stick with the status quo, as seen in users who renew subscriptions simply because it’s the default option. Scarcity bias advances that individuals value things portrayed as scarce, which online platforms exploit by displaying “limited edition” offers or countdown timers to create a sense of urgency. The social norm effect reflects the “herd mentality”, the tendency to follow or value something because others seem to do so.
Nudging – A Coin with Two Sides
The understanding of these psychological elements forms the basis of nudging. Nudging, also known as choice architecture, is the practice of influencing user choices by shaping their decision-making environment. Given the shrinking online attention spans, designers leverage nudging tactics with remarkable genius. For instance, a website cookie consent banner might nudge users towards accepting cookies by presenting the “accept” option with identical color, size, font, and placement as the “reject” option. The following section examines the effectiveness of the CCPA Guidelines with respect to the way they address these psychological mechanisms, and how the Guidelines play a crucial role in consumer protection and creation of a safe and ethical digital marketplace.
The CCPA Guidelines: Evaluating Success and Addressing Shortcomings
In India, the Consumer Protection Act, 2019 (‘CPA’) safeguards the interests of consumers. The CPA mainly focuses on protecting consumers from restrictive trade practices (‘RTPs’) and unfair trade practices (‘UTPs’), redressal of consumer grievances, etc. The CCPA Guidelines come as a subset of such regulations, including e-commerce and misleading advertisements.
While the Guidelines offer a thorough examination of dark patterns and strategies for their elimination, they still allow for significant room for interpretation and subjectivity. A major concern is the heavy emphasis on discerning the designer’s intent to deceive or mislead users, without providing a clear and objective criteria for such assessment. Further, the broad scope of what exactly constitutes a dark pattern under the Guidelines can often make it challenging to precisely classify certain practices. Additionally, the Guidelines fail to grant the CCPA the authority to impose penalties for violations. Although a provision for the same was included in the Draft Guidelines, its omission from the final version reflects an absence of statutory consequences for non-compliance. This omission undermines the enforcement power of the CCPA, despite the authority conferred upon it by the CPA to take actions necessary for safeguarding consumer rights.
To address these shortcomings, it may be necessary for ministries and regulatory authorities to collaborate in assessing the impact of regulating dark patterns. A key improvement would be the integration of relevant provisions from the Digital Personal Data Protection Act, 2023 into the Guidelines to address the influence of dark patterns on personal data. The Justice B.N. Srikrishna Committee Report suggests that incorporating the concept of “fiduciary duty” could hold organizations accountable for their actions, and thereby better protect consumer rights from deceptive strategies that might not fall within the current scope of the Guidelines.
Furthermore, given the technical complexities of data privacy and consent in the digital world, the CCPA may not be the most appropriate body to address these issues. The Guidelines do not establish a clear connection between data privacy and dark patterns. The Data Protection Board (DPB), with a mandate under Section 19(3) of the DPDP Act to include members with expertise in data governance and consumer welfare, is better suited to handle such matters. Therefore, the formation of body that integrates the expertise and functions of both the DPB and CCPA is paramount for effective addressal of the intersection of data privacy and dark patterns.
Conclusion
Dark patterns are not just a technical concern but a profound psychological issue as they exploit cognitive biases and heuristics that influence decision-making. By leveraging psychological triggers such as urgency and scarcity, dark patterns manipulate users into making decisions that prioritize corporate gain over consumer autonomy. The CCPA Guidelines mark an important step in this direction, recognizing and addressing the psychological manipulation embedded in these designs. However, a deeper understanding of the cognitive mechanisms involved is needed for these regulations to be effective, along with a strong commitment to enforcing ethical design practices and fostering a safe digital realm.
To effectively safeguard consumers, it is imperative for regulators, designers, and policymakers to collaborate in creating a digital environment, which respects and prioritizes user autonomy. This effort requires not only stronger legal frameworks, but also a paradigm shift towards ethical design that emphasizes transparency and trust. The greatest challenge ahead lies in the continuous adaptation and amendment of these regulations to keep pace with evolving digital strategies, ensuring that the psychological strategies behind dark patterns are met with equally advanced and sophisticated consumer protection.
This blog is written by Shatrupa Sharma, IInd year B.A. LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Patiala (RGNUL).