Data PrivacyNavigating the Intersection of Data Privacy and Dark Patterns

INTRODUCTION

The Digital Personal Data Protection Act, 2023 (“DPDPA”) and the Guidelines for Prevention and Regulation of Dark Patterns, 2023 (“Dark Patterns Guidelines/ the Guidelines”) linkup strongly to play a pivotal role in safeguarding consumer rights and privacy in the ever-growing digital world. With each digital experience constantly evolving into more complex mechanisms which are increasingly dependent on data processing, it is the need of the hour to develop a well-defined system that properly protects the user rights.

Though the DPDPA serves the purpose to a large extent, merely creating a legal framework that provides for data protection would be inadequate as the very design of user interfaces are manipulative, leading users into decisions that they might not be conscious.

While the DPDPA establishes a framework for data fiduciaries to collect and process personal data with user consent, the Dark Pattern Guidelines specifically target deceptive design practices that manipulate user choices. The synergy between the DPDPA and Dark Pattern Guidelines are very evident to the extent that both frameworks focus on informed consent, transparency and empowering the user to have greater control over their personal data. Moreover, the DPDPA’s restriction on excessive data collection works to mitigate the risks associated with privacy dark patterns that exploit user consent to gather more information than necessary.

However, the creaks and crevices in the frameworks become exposed when examining the guidelines which defines the dark patterns based on the concept of “intention”, which provides a leeway for platforms to circumvent the law. There is also a lack of depth in the guidelines on the dark patterns that impact the personal data privacy, leading to potential violations of the right to privacy on the basis of which both frameworks were built.

In this blog, we will delve into the interconnection between the DPDPA and dark pattern regulations, exploring how these overlapping domains impact user rights, corporate responsibilities, and the overall integrity of the digital ecosystem.

WHAT ARE DARK PATTERNS

As per the Dark Pattern Guidelines issued by Central Consumer Protection Authority, dark patterns have been defined as “any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform; designed to mislead or trick users to do something they originally did not intend or want to do; by subverting or impairing the consumer autonomy, decision making or choice; amounting to misleading advertisement or unfair trade practice or violation of consumer rights”.

In simple words, dark patterns are practices employed in digital interfaces that seek to manipulate or mislead the users into taking action that they otherwise consciously might not choose to do. This is done by using subtle psychological tricks or cognitive biases that may subconsciously prompt or steer the user to make certain decision that is in the interest of the service provider but detrimental to the user by compromising on privacy or autonomy of the user. Some examples of dark patterns are prechecked checkboxes while asking for certain permissions, colour coding the buttons to secure certain permissions, hiding certain texts in fine print or otherwise creating an overall negative interface that may cause the user to accidently share more personal data than he/she intends to.

INTERPLAY BETWEEN THE DARK PATTERNS GUIDELINES AND DPDPA

The crux of the interplay between the Dark Pattern Guidelines and the DPDPA lies in the need to protect and obtain genuine user consent, transparency and ethical digital practices. Dark patterns, which are deceptive tools used to manipulate users to make a certain choice or decision directly challenge the principles that the DPDPA seeks to establish. The DPDPA was designed to protect personal data and ensure that data processing is done with informed and unambiguous consent. This is directly violated by dark patterns that obtain user consent or other permissions through confusing interfaces, hidden settings and other deceptive techniques that force the user to make decisions without being completely aware about them.

Consent is the cornerstone on which the DPDPA was built and it has been expressly stated that the consent obtained must be free, informed specific and unambiguous, which means that the users must understand what they are agreeing to and have absolute and complete control over their data choices, with them even holding power to retract their data at any given point. The use of dark patterns directly contradicts this established parameter for obtaining consent by coercing the user or obtaining uninformed consent, which may make it difficult for the user to exercise their rights under the DPDPA.

This is particularly relevant in a digital environment where the user trust is essential for data-driven services. If businesses use dark patterns to manipulate users, the intent behind the DPDPA is compromised, even if the strict letter of the law is technically followed.

One area where such interplay is evident is the privacy settings and data collection preferences, that a user encounters on a routine basis. As per the DPDPA, the user must have the ability to easily opt in or out of data sharing and that these choices should be made transparently. However, dark patterns can pose hurdles to this requirement, by making the “opt-out” option difficult to find or presenting consent in a way that is confusing to the user.

For example, when asking the user for certain personal data, a website may employ dark patterns by highlighting the “Yes” button or by making the “No” button difficult to find or not equally visible as the yes button. Such tactics not only contradict the spirit of the DPDPA, but is direct violation of the law, as genuine consent cannot be considered as valid if obtained through deceptive means.

The DPDPA and dark patterns are related in terms of user rights such as data access, rectification, and deletion. If these procedures are made complicated or cryptic by the employment of dark patterns, users’ legal rights are essentially violated. For instance, a platform might make the process laborious or hide the ability to delete an account behind several levels of complicated menus, which would be in violation of the DPDPA’s need for user-friendly mechanisms to exercise data rights. There is an increasing demand for more clear recommendations that address dark patterns as Indian regulators become aware of the negative effects of these practices. This emphasizes the significance of ethical design in digital products.

In the long run, the way that dark patterns and the DPDPA interact is a measure of how successfully legal frameworks can change to reflect the realities of digital behaviour. Although the DPDPA provides strong data protection guidelines, combating dark patterns necessitates a comprehensive strategy that goes above and beyond regulatory adherence to guarantee that digital platforms are created with user welfare in mind. Building a fair, transparent, and user-autonomous digital ecosystem requires the convergence of data protection laws and anti-dark pattern legislation, as firms operate in an increasingly data-rich environment.

AMLEGALS REMARKS

The DPDPA and the Guidelines interact, bringing to light the changing difficulties associated with protecting user rights in the digital era. As digital experiences become more complex, it is no longer sufficient to merely prescribe data protection measures; the methods by which data is acquired also require close examination. The basic foundation of consent and transparency that the DPDPA and other legislation aim to establish is undermined by dark patterns. These misleading design strategies seriously jeopardize the integrity of data protection initiatives by coercing users into actions they may not fully comprehend or intend.

It is becoming more and more important for businesses to go above and beyond the requirements of the law and implement ethical design principles that put user autonomy and sincere consent first in order to comply with the DPDPA. For regulatory compliance and to preserve user confidence, it is essential to make sure that consumers are neither deceived or forced into disclosing personal information using dark patterns. In today’s digital environment, ensuring that user-centric design and data protection principles are in sync is not only required by law but also crucial for business.

In the future, it will be crucial to incorporate clear principles addressing dark patterns into data protection regimes such as the DPDPA. By balancing the practical realities of user experience with the legal aspects of data protection, such legislation would establish a more holistic approach to digital ethics. India can progress towards a transparent and equitable digital ecosystem by promoting a legal framework that acknowledges the relationship between interface design and data protection. In the end, combating dark patterns is essential to guaranteeing that users have real control over their private information and online activities, making the Internet a more secure and reliable place for everyone.

– Team AMLEGALS assisted by Mr. Rohan Johnson (Intern)

For any queries or feedback, feel free to connect to mridusha.guha@amlegals.com or liza.vanjani@amlegals.com