Ever since the Central Consumer Protection Authority (CCPA) introduced the finalized list of guidelines as a framework to curb faulty practices or “dark patterns”, businesses have been trying to interpret and adapt the rules accordingly. However, they have been reluctant to discuss how they have been going about it, given the sensitive nature of the matter.

Many companies said that they would adhere to the guidelines as consumers are their priority. “We have high standards of customer transparency and trust. We not only adhere to all applicable laws but also continually listen to customers’ feedback and look for ways to improve customer’s shopping journey on Amazon.in,” said a spokesperson from Amazon India.

The impact 

Experts say that while some of theguidelinesseem fair for consumers and companies, some will impact businesses even when they are not doing anything wrong.

Companies have been particularly worried about the clauses against False Urgency, Confirm Shaming, Interface Interference, Bait and Switch, Trick Questions, and Disguised Ads.

Businesses often use the above-mentioned practices, described as “dark patterns” by the CCPA as a part of marketing. Brands believe these are innocuous sales tactics to grow their businesses and boost consumers’ purchase journeys.

In the end, it’s the consumers’ call whether to subscribe, purchase, or leave something in the cart. Although this empowers consumers, can these weaken businesses? Under the new guidelines, brands worry that even a common sales practice like “call to action” can be misinterpreted as a dark pattern. Many brands use call-to-action phrases to convince consumers to take the final step and make the purchase.

While talking about the topic, Meghna Bal is the Head of Research and a Fellow, ESYA Centre said: “Some of them are misleading for the consumers but the problem with these guidelines is that they have just given a laundry list without enough qualifications and the ‘dark patterns’ have been defined in a considerably broad language. It will bring legitimate practices that do not really intend to deceive consumers but perhaps reduce consumer friction. There has to be some kind of balance between what a business legitimately does to encourage sales (the marketing tactics) and what is a willfully deceptive practice.”

“I don’t think the consumer’s interest will be safeguarded. I think the regulators will not be able to curb dark patterns but will limit interface innovations, they may limit product discovery, and they may add friction, particularly for start-ups, and impact customer acquisition and retention.  There is a lot of uncertainty in the guidelines and the purpose is unclear”, she added.

“These rules can lead to concerns in businesses - the online ones and especially the startups to navigate. We have seen in the last few years that online businesses are seen to be regulated at a higher level than offline ones. The online world is its victim of its own transparency. One problem that arises that how do we measure these practices?” says Avimukt Dar, Founding Partner, Indus Law.

Saptarshi Prakash, Director of Design, Swiggy, offered a contrasting view by highlighting the difference between dark patterns and practices that shape consumer behaviour: “I think there is a fine line between the two. The latter is helping the consumer and easing their lives but ‘dark pattern’ is where the business is telling half the story and making consumers sign up for it either voluntarily or involuntarily by hiding some parts of the transaction.

“That’s where the problem starts to appear. When I look at the guidelines, they make sense. If I were to go by the textbook fundamentals of user experience design. It is a good call by the government which is reminding us to think from the fundamentals again.”

Circling the rules 

e4m spoke to digital experts to understand how businesses should go about it and how they can navigate these guidelines without getting into trouble.

According to Jatin Sinha, Head of Digital Transformation - Schbang, brands have to make clear strategies. He said, “Brands must revise their marketing strategies, prioritizing transparency and customer respect. Clear, complete communication of product details and pricing helps consumers make informed choices. Brands must refrain from manipulative tactics and deceptive UI designs which mislead consumers.  It's essential to simplify processes such as cancellations and refunds and communicate them in straightforward terms.

“They should encourage consumer feedback to understand their needs better, improving user experience, and fostering a transparent relationship. Honesty and openness in marketing not only spur sales but also deepen consumer trust, fostering long-term loyalty”, he added.

Shantanu Bhattacharyya, Sr. VP - Digital Strategy Planning & Client Success, LS Digital, said, “Brands need to understand that a 'fly by night' style digital practice is not conducive to growth in the long run. Consumers would remember brands who try to take these shortcuts and would not be hesitant to share these among friends and family and in social media which can do immense harm to the brand in the long run.

“My advice to the marketers is simple - think like the consumer. Would the activity, design or UI UX that they have deployed be acceptable to them as consumers? If the answer is no, please do not deploy that.”