ASCI extends deadline for feedback on Dark Patterns to Jan 16, 2023

The Advertising Standards Council of India (ASCI) recently published a discussion paper, titled ‘Dark Patterns in Advertising’, highlighting how certain UI/UX deployed by digital platforms could manipulate consumer choices and consumption patterns to the detriment of consumer interest.

The self-regulatory organisation had invited public feedback and comments on the recommendations of the discussion paper, which will help ASCI extend its self-regulatory code on objectionable ads to cover dark patterns too.

Now, ASCI has extended the deadline for the feedback until January 16, 2023, based on requests it has received from a few organisations. Submissions by any member of the public or any organisation public can be sent to contact@ascionline.in

The ASCI report defines a dark pattern as “a user interface that has been crafted to trick or manipulate users into making choices that are detrimental to their interest – such as buying a more expensive product, paying more than what was initially disclosed, sharing data or making choices based on false or paid-for reviews, and so on.

E-commerce companies spend millions of dollars in designing user interfaces and navigation paths that eventually lead to more business. Every day, technology offers new ways of engaging with consumers. However, when these are done in a way that steers the consumer to choices that are prejudicial to their interest, a line is crossed. User experience designer Harry Brignull coined the term “Dark Patterns” in 2010 to describe such practices.

The issue of dark patterns is now an increasing concern for those working in the area of consumer protection. Dark patterns mainly pertain to advertising or unfair practices. The European Data Protection Board (EDPB), for instance, has issued guidelines on dark patterns on social media platform interfaces.

A recent report by the Federal Trade Commission (FTC) shows a rise in sophisticated dark patterns designed to trick and trap consumers.

The Indian consumer is not immune to dark patterns, and as online commerce grows, this is an increasing area of consumer vulnerability. A few steps have already been taken in this regard in the recent months.

Although the term “Dark patterns” has only recently made its way into common usage, The Advertising Standards Council of India (ASCI), has been addressing such issues through its existing code on misleading ads. The ASCI code applies across media, including online advertising (including companies’ own websites, pages and handles).

In 2021, ASCI asked social media influencers to disclose promotions, in order to address the issue of disguised ads. As lines between content and ads blur, the ability of consumer to make an informed decision comes under question.

According to the report, 29% of ads processed by ASCI in 2021-22 pertained to disguised ads by influencers, a kind of dark pattern.

To better understand the issue of dark patterns and how ASCI might safeguard consumers against them, a task force was put together comprising different stakeholders. The task force examined various dark patterns and arrived at those that were believed to be prevalent in advertising, as well as those that were unfair practices not directly linked to advertising content. The team at Phoenix Legal helped the task force to better understand the global regulations and approaches.

Based on the discussions of the task force, the ASCI code is proposed to be extended to reflect the following advertising-related concerns around dark patterns. ASCI has invited the views of the public, and other stakeholders before extending the code to these areas.