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Tech group calls India’s proposed guidelines against dark patterns ‘regulatory overlap’

An industry group representing several major U.S. tech companies has opposed the Indian government’s proposal against dark patterns, which are used to deceive online users, and said the move would adversely affect the state promise of enabling “ease of doing business” in the economy and bring “regulatory overlap” with existing laws.

New Delhi released the draft guidelines (PDF) to prevent and regulate dark patterns for public consultation last month for 30 days until Thursday, October 5, to get feedback on the proposed rules to mitigate deceptive practices by online companies to deceive or manipulate consumers using unethical designs or patterns in their online interface.

Asia Internet Coalition, which represents tech giants including Apple, Google, Meta, Amazon and X (formerly Twitter), has suggested that the proposed rules “may stagnate the growth” of the country’s digital economy and urged the Indian government to consider the current self-regulatory framework as the primary measure to restrict the use of dark patterns. The industry group also said online platforms are already regulated in the country under various existing laws.

“Any attempt to introduce a separate regulatory framework would cause unnecessary regulatory overlap. This overlap will result in divergence across applicable legal frameworks leading to uncertainty in terms of compliance requirements,” the group said in its detailed note sent to the consumer affairs department that released the draft guidelines. A copy of the note was also published on the group’s website.

The group stated that while online platforms in India qualify as online intermediaries and are regulated under the Informational Technology Act 2000, e-commerce platforms are governed by the Consumer Protection Act 2019 rules. Similarly, it said sector-agnostic obligations are under the Digital Personal Data Protection Act 2023, released in August.

In June, the consumer affairs department consulted stakeholders including e-commerce platforms and law firms on dark patterns. The department said the meeting reached a general consensus that dark patterns were causing concern and required proactive handling. Subsequently, the government formed a task force that comprised representatives from industry associations, e-commerce platforms and companies in the online business, including Google, Flipkart, Reliance Industries, Amazon, Go-MMT, Swiggy, Zomato, Ola, Tata CLiQ, Facebook, Meta, and Shiprocket, that led to the release of the draft guidelines.

Asia Internet Coalition recommended the Indian government consider adopting the approach taken by the European Union, which is also working on regulating the practice of using dark patterns. It also suggested that if the consumer affairs department felt to introduce a separate framework, the regulation should be sector and medium-agnostic and apply to both offline and online content and advertisements — not specifically to the latter.

The group also said the department should provide a “sufficient buffer period between the publication and implementation” of the proposed rules and should not be enforced upon publication. Further, it requested to protect safe harbor protections available in the IT Act and online intermediary platforms including e-commerce marketplaces “should not be held responsible for the dark patterns that may be present in third-party content and advertisements hosted by them.”

“At present, the Draft Dark Pattern Guidelines provide for a blanket provision requiring that no person including platforms should engage in any dark pattern. However, such a blanket provision would raise serious concerns for online intermediaries,” the group said.

It also has requested the consumer affairs department to define the term “endorser” in the rules to “adequately address” the instances of dark patterns’ presence through disguised advertisements, including endorsements from influencers and celebrities.

The government noted false urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch and drip pricing as some of the recognized dark patterns. The group said the practices suggested by these patterns are already considered “unfair” under existing laws, including the Consumer Protection Act, and internal policies of platforms and digital service providers.

India, the world’s second-largest base of internet users after China, is a crucial market for global online platforms. However, with the increasing online population, the Prime Minister Narendra Modi-led government is implementing more regulations on the market.

The government is looking to replace its over two-decade-old IT law with a new regulation called the Digital India Act, which is expected to be introduced for public consultation soon. The upcoming law will likely to address some of the concerns on dark patterns, alongside new rules on cybersecurity and data management, as well as emerging technologies such as artificial intelligence and blockchain.

source: TechCrunch