Many digital applications operate in grey areas

New Delhi: One of the rights guaranteed under the Consumer Protection Act, 2019 is the right to be informed — about the quality, quantity, potency, purity, standard and price of goods, products or services. Deceptive patterns used by digital platforms are classified as “unfair trade practices” under this law.

Section 89 of the Act states that violation of the Central Consumer Protection Authority’s (CCPA) guidelines is a punishable offence. Any manufacturer or service provider responsible for a false or misleading advertisement that harms consumer interest can face imprisonment of up to two years and a fine of up to Rs 10 lakh. Repeat offenders can be punished with up to five years in prison and a fine of up to Rs 50 lakh.

Other legislations such as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and the Digital Personal Data Protection Act, 2023, also address elements of deceptive design. These laws emphasise the need for informed consent before collecting or processing sensitive personal data.

However, enforcement remains a challenge. It requires proving that the pattern in question was deceptive, intentional, and caused harm. This is often difficult in a digital landscape that sees rapid user interactions. Many platforms operate in legal grey zones, using ambiguity to their advantage.

“The dark patterns guidelines are a strong starting point, but ultimately, effective consumer protection will depend on robust enforcement and regulatory evolution. As digital platforms grow more sophisticated, the law must keep pace,” said Probir Roy Chowdhury, partner at JSA Advocates and Solicitors.

He added that regulators could consider more explicit definitions of platform practices and mandate greater design transparency. “This could include, for instance, clear disclosures when additional items are added to a shopping cart or when a subscription is automatically renewed.”

Advocate Sehel Khan, a specialist in consumer protection and cyber law, pointed out that in the current regulatory environment, it is nearly impossible for individual consumers to prove violations in court. “Companies exploit grey areas in design and consent frameworks. Most consumers either give up or avoid pursuing legal redress altogether.”

Time and cost are significant deterrents. “A person who has lost Rs 1,000 or Rs 2,000 is unlikely to enter into a lengthy and expensive legal battle,” he noted.

The Advertising Standards Council of India (ASCI), in 2022, introduced self-regulatory guidelines to address the rising use of deceptive design in digital advertising. The guidelines came into force on September 1, 2023 and warn that dark patterns could ultimately damage brand credibility.

In a discussion paper titled Dark Pattern: The New Threat to Consumer Protection, the ASCI noted that “Dark patterns undermine how consumers perceive advertising. As their presence grows, users become more guarded and sceptical of digital spaces. In the long run, such tactics erode trust, damage brand loyalty and increase customer drop-offs.”