Conditions for Dark Patterns

• Any person, including any platform, shall be considered to be engaging in a dark pattern practice if it engages in any practice specified in Annexure 1 to the Guidelines that are:

1. False Urgency: It means to create a falsely stating or implying the sense of urgency or scarcity so as to mislead a user into making an immediate purchase or taking an immediate action.

It includes:

(i) Showing false popularity of a product or service to manipulate user decision;

(ii) Stating that quantities of a particular product or service are more limited than they actually are.

Illustrations:

• Presenting false data on high demand without appropriate context. For instance, “Only 2 rooms left!” 30 others are looking at this right now.
• Falsely creating time-bound pressure to make a purchase, such as describing a sale as an ‘exclusive’ sale for a limited time only for a select group of users.                                              

2. Basket Sneaking: It involves adding extra items like products, services, payment to charity or donation to the user’s cart during checkout without their consent, leading to a higher total amount than originally intended.

Note: the addition of free samples or providing complimentary services or addition of necessary fees disclosed at the time of purchase, shall not be considered as basket sneaking.

Illustrations:

• Automatically adding travel insurance while a user purchases a flight ticket.
• Automatic addition of paid ancillary services with a pre-ticked box or otherwise to the cart when a consumer is purchasing a product or service

3. Confirm Shaming: It means using a phrase, video, audio or any other means to create a sense of fear or shame or ridicule or guilt in the mind of the user so as to nudge the user to act in a certain way that results in the user purchasing a product or service from the platform or continuing a subscription of a service, primarily for the purpose of making commercial gains by subverting consumer choice.

Illustrations:

• A platform for booking flight tickets using the phrase “I will stay unsecured”, when a user does not include insurance in their cart
• A platform that adds a charity in the basket without user’s consent and uses a phrase such as “charity is for rich, I don’t care” when a user prefers to opt out of contributing towards charity.

4. Forced Action: It means forcing a user into taking an action that would require the user to buy any additional goods or subscribe or sign up for an unrelated service or share personal information in order to buy or subscribe to the product or service originally intended by the user.

Illustrations:

• Prohibiting a user from continuing with the use of product or service for the consideration originally paid and contracted for, unless they upgrade for a higher rate or fee
• Forcing a user to subscribe to a newsletter in order to purchase a product.
  
  

5. Subscription Trap : It means the process of –

(i) making cancellation of a paid subscription impossible or a complex and lengthy processor

(ii) Hiding the cancellation option for a subscription                                                              

(iii) forcing a user to provide payment details or authorization for auto debits for availing a free subscription                                                                       

(iv) making the instructions related to cancellation of subscription ambiguous, latent, confusing, cumbersome.

6. Interface Interference: It means a design element that manipulates the user interface in that ways                                                                                                                                                       

(a) highlights certain specific information                                                                                                  

(b) obscures other relevant information relative to the other information; to misdirect a user from taking an action as desired

       Illustrations:

• designing a light-colored option for selecting “No” in response to a pop-up asking a user if they wish to make a purchase or concealing the cancellation symbol in tiny font or changing the meaning of key symbols to mean the opposite.
  
  

7. Bait and Switch: It means the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.

Illustrations:

• A seller offers a quality product at a cheap price but when the consumer is about to pay or buy, the seller states that the product is no longer available and instead offers a similar looking product but more expensive.
• A product is unavailable but is falsely shown as available to lure the consumer to move it to the shopping cart. Once the consumer moves it to the shopping cart, it is revealed that the product is ‘out of stock’ and instead, a higher-priced product is now available.

8. Drip Pricing: It means a practice whereby-

(i) elements of prices are not revealed upfront or are revealed surreptitiously within the user experience                                                                                                                                                

(ii) revealing the price post-confirmation of purchase, i.e. charging an amount higher than the amount disclosed at the time of checkout

(iii) a product or service is advertised as free without appropriate disclosure of the fact that the continuation of use requires in-app purchase; or

(iv) a user is prevented from availing a service which is already paid for unless something additional is purchased.

  Illustrations:

• A consumer is booking a flight, the online platform showcases the price as X at the checkout page, and when payment is being made, price Y (which is more than X) has been charged by the platform to the consumer.
• A consumer has purchased a gym membership. In order to actually use the gym, the user must purchase special shoes/boxing gloves from the gym, and the same was not displayed at the time of offering the gym membership.

9. Disguised Advertisement: It means a practice of posing, masking advertisements as other types of content such as user generated content or new articles or false advertisements, which are designed to blend in with the rest of an interface in order to trick customers into clicking on them.

The term disguised advertisements shall also include misleading advertisements as defined under the guidelines itself.

It is to be noted that in relation to content posted by a seller or an advertiser on a platform, the responsibility of making the disclosure that such content is an advertisement shall be on such seller or advertiser.

10. Nagging: It means a dark pattern practice due to which a user is disrupted and annoyed by repeated and persistent interactions, in the form of requests, information, options, or interruptions, to effectuate a transaction and make some commercial gains, unless specifically permitted by the user.

Illustrations:

• websites asking a user to download their app, again and again
• platforms asking users to give their phone numbers or other personal details for supposedly security purposes
• constant request to turn on or accept notifications or cookies with no option to say “NO

11. Trick Question: It means the deliberate use of confusing or vague language like confusing wording, double negatives, or other similar tricks, in order to misguide or misdirect a user from taking desired action or leading consumer to take a specific response or action.

Illustrations:

• While giving a choice to opt, “Do you wish to opt out of receiving updates on our collection and discounts forever?” using phrases like, “Yes. I would like to receive updates” and “Not Now”, instead of the option, “Yes”.

12. SaaS Billing: It refers to the process of generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model by exploiting positive acquisition loops in recurring subscriptions to get money from users as surreptitiously as possible.

Illustrations:

• No notification is given to the user when free trial is converted to paid.
• Silent recurring transactions whereby the user’s account is debited without being notified or simply stated auto-renewing monthly subscriptions without telling users.

13. Rogue Malware: It means using a ransom ware or shareware to mislead or trick user into believing there is a virus on their computer and aims to convince them to pay for a fake malware removal tool that actually installs malware on their computer.

Illustrations:

• When a pirating website/app promises the consumer to provide free content (audio or audio-visual or others) but actually leads to an imbedded malware when the link is accessed.
• When consumers gain access to the content on pirated platforms but keep getting pop-ups that have advertisements on them which are imbedded with malware

Note: The dark pattern practices and illustrations specified above provide only guidance and shall not be construed as an interpretation of law or as a binding opinion or decision as different facts or conditions may entail different interpretations.