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Dark Patterns: The Ominous Side of the Marketing Sector

Khurana and Khurana, Advocates and IP Attorneys India


INTRODUCTION

Certain websites are using ‘dark patterns’, which is a concept that has just lately entered the digital language, to deceive you into taking actions that you are unaware of taking. This includes choosing unwanted services which you were unaware of while opting it or creating a space where it deters you from leaving or deactivate that service.

Dark patterns have turned into a marketing sinister which has developed itself to be present in every corner of the social networking sites for example, people scrolling on their Instagram and coming across advertisements which they were looking for or even thing about it.

For example: Most websites show cookie consent pop-ups which asks you to accept it to move forward on their website. However, if one does not want to accept it there is another option of removing cookie by manual setting which most of the people don’t opt it due to lack of time or desire to so such lengthy process for just one website and they accept the cookies of the website unknowingly for what the cookie was accepted as most companies rely on user data and don’t want it to be easy for their users to easily deny it.

 

WHAT DOES DARK PATTERN MEAN?

The concept of dark patterns was coined by London based – UX Designer Harry Brignull in the year 2010 who has now acquired a common place status in digital marketing and advertising industry. Although most consumers are unaware of the exploitative and deceptive nature of UI/UX interfaces used in digital marketing and advertising.

Harry Brignull defines Dark Patterns as:

 

a user interface that has been carefully crafted to trick users into doing things that are not in their interest and usually at their expense”.

These, however, are simply deceptive marketing ploys. The terms dark patterns and dark patterns in user experience are widely used to describe the same thing. They might be unethical, but some would argue that if they break privacy or distance selling rules, they might even be against the law in some countries. There has been a lot of legislation created to limit dark patterns since, in some cases, the laws haven't kept up with the practices.

 

UNDERSTANDING NEXUS OF DARK PATTERN AND MARKETING

In simple words, dark patterns are a malicious interface technique which is crafted in a way to manipulate or trick users to make choices that are adverse of their interests. These dark patterns are made with the concept of human psychology which is good for attracting consumers and has become a common element for web malpractice. This pattern has also been used by big brands to attract more consumers/users online. Being ethical or unethical is totally subjective based upon the represented connection between the company and the consumer as marketing doesn’t have any steadfast rules. In short, for every marketing company everything tends to be ethical unless it is harmful for their consumers. The most common three types of patterns which are used:

  1. FAKE NOTIFICATIONS

It has been frequently observed that various social media sites have made a common practice of showing pop up notifications on smart phones but when users check the notification there is no such activity. In fact, there has been certain instances where social media sites like Instagram, Facebook, LinkedIn and Snapchats tends to email you or shows red dots on their applications so that the users could log in to their devices to see notifications or spend an amount of time in those sites so that the developers are benefitted with it.

  1. PRICE COMPARISON AND HIDDEN COSTS

Making it harder for customers to compare prices, especially by hiding charges, is one of the most disagreeable and occasionally aggressive dark patterns organizations may apply. The holiday rentals, Juggernaut Airbnb, uses a slight variation of this frightening pattern when displaying fees for listings on their service. When search results are provided, the daily tariff for each hotel is prominently displayed. However, the daily pricing does not include any other costs, such as cleaning charges or Airbnb's service charge. When a user chooses dates for their stay, the business does show a total pricing, but they must click to view a breakdown of the additional costs charged.

  1. SNEAKY CHOICES

One of the most crucial factors for online buyers is the provision of free shipping, and retail behemoth Amazon played a significant part in establishing the free shipping norm. When customers are browsing and adding products to their cart, Amazon clearly advertises that they can get free shipping if they spend 500 INR or more on qualified items.

However, Amazon automatically selects a paid delivery option when consumers with orders that are eligible for free shipping go through the checkout process. The estimated delivery times for this premium shipping option typically coincide with those for the free shipping option, and in certain cases, they might even be faster. It goes without saying that under these situations, the majority of customers, if not the majority, would have been little to no incentive to choose the premium option.

However, the aim of any company should be effective marketing which helps the customers to be attracted to their services. An ethical work and environment in any company can lead to a stable customer base. It is very evident that people buying from a certain company which are transparent with dealing in business are more inclined to stay. As the chances are when the company is involved in such dubious activity there could be chances that someone could have the notice and it could result to a huge business loss. This case was observed in the case LinkedIn in 2015 which faced $15 million lawsuit for leaking user information without their knowledge to certain contacts.

 

INTERNATIONAL OVERVIEW

Certain countries have excelled in protecting their consumer data by evolving their laws on Data Protection:

United States

The United States have brought Federal Trade Commission (FTC) which armed in protecting consumer interests as well as to educate them on the evolving risks in online websites and digital advertising and its marketing. The report found that companies are using these dark patterns in multiple ways to increase their commercial value by the concept of cookie banners, subscription sale or any other children’s applications which helps the company to attract the customers. Listed down are popular tactics used by the company:

  • Hiding key terms and extra fees
  • Complicated subscription cancellations and charges
  • Providing deceiving advertisements
  • Luring consumers into revealing their personal data

FTC also marked the efforts into finding ways to tackle such dark patterns in the US marketing sector and had the commitment of agency for taking actions against such tactics.

European Union

Similar to United States, the European Data Protection Board (EDPB) came out with certain provisions which found to be strong enough to tackle the dark patterns which were used in the European marketing sectors which helped in understanding how to recognize them and tackle them. EDPB has been beneficial for the digital content creators on social medias and designers which helps them to dissect the contents which are against the policies of European Protection Board. The European laws have recognised certain dark patterns:

  • Skipping: Certain designs which distracts users to disclose their personal information by enabling certain options on their screen.
  • Hindering: Providing unnecessary questions to the users to provide personal information by popping up on certain websites while opening.
  • Overloading: Developers put too much information which led users to provide even their personal information.

 

Indian Context

The Indian law does not directly talk about the data prevention laws instead contains certain provisions such as in IT Act, 2000 and Indian Penal Code, 1860. However, Advertising Standards Council of India (ASCI) has picked up a twelve-member task force which will examine certain dark patterns used in the Indian marketing sector to misguide users.

ASCI has called upon for more transparency in social media advertisements for the users to make a better decision as these media advertisements have dark patterns which affects the consumer decisions. As per the report 29% of the advertisements have found to be disguised advertisements by influencers in the year 2021-22 and in which cryptocurrency has topped the list followed by fashion, finance and food & beverages. Before the extension of code, the ASCI has invited certain stakeholders for their inputs in the code.

CONCLUSION

Dark patterns are not a new term rather a common practice in different forms. Various countries have implemented strong laws to tackle these kinds for maintaining transparency in marketing sectors, however, India is yet to see such laws as its high time for the country bring upon certain provisions for tackling these activities which have reached its heights since the pandemic as users have experienced the most fraud cases in such period itself. These have been multiple committees formed but it has not reached to the conclusion to reach the outset of data protection laws in India.

Author: Aditi Sahay (intern) at Khurana & Khurana, Advocates and IP Attorney, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com.

 

Khurana and Khurana, Advocates and IP Attorneys



About the Firm

Khurana and Khurana, Advocates and IP Attorneys

AddressE-13, UPSIDC, Site-IV, Behind-Grand Venice, Kasna Road, Greater Noida - 201310, UP, National Capital Region, India.
Tel91-120-4296878, 91-120-4909201, 91-120-4516201
Fax91-120-4516201
Contact PersonTarun Khurana
Emailinfo@khuranaandkhurana.com
Linkwww.khuranaandkhurana.com


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