Behavioural economics, a field blending psychology and economics, witnessed significant growth following the groundbreaking work of Daniel Kahneman and Amos Tversky.

This evolution gained further momentum with the publication of “Nudge” by Richard Thaler and Cass Sunstein. The book, aimed at both laypeople and professionals, emphasised the potential of subtle policy changes to guide behaviour without restricting freedom of choice.

Richard Thaler’s Nobel award further catapulted behavioural economics into the limelight, underscoring its practical relevance in everyday life, including in marketing strategies. However, this widespread adoption has not been without controversy. Some marketers have used behavioural insights for predatory practices, manipulating consumer choices for profit rather than welfare.

This leads us to the concept of “Dark Patterns” in marketing and web design. Dark patterns represent manipulative design techniques that influence consumer behaviour online. These deceptive practices subtly coerce users into making decisions against their own interests, such as unintentional purchases or sharing personal data.

Designers deliberately craft dark patterns in user interfaces to mislead users, obstruct their true choices, or coerce them into certain behaviours. These designs usually encourage impulsive, instinctual decision-making over thoughtful analysis, taking advantage of mental shortcuts and biases such as framing, the sunk cost fallacy, and anchoring. The primary aim of these dark patterns is to trick consumers into actions that don’t align with their initial desires, unlike conventional marketing, which seeks to change those desires.

A study by the Princeton Web Transparency and Accountability Project analysed 11,000 websites and found dark patterns to be exploiting different kinds of cognitive biases to manipulate the choice of customers. For instance, the “Sneaking” category of dark patterns include tactics like “Sneak into Basket”, wherein items are added to shopping carts without user consent, exploiting the Default Effect bias where people accept pre-set options. This often results in unintended purchases as users assume these are default choices.

The “Urgency” category uses the Scarcity Bias with tactics like “Countdown Timer” and “Limited-time Message”, suggesting imminent deal expiries to create a false urgency. By creating a false sense of urgency, these patterns exploit the fear of missing out (FOMO), prompting users to make hasty decisions. This can lead to impulsive buying, where the user might not have made the purchase under normal circumstances.

A study by Arunesh Mathur et al. found that dark patterns can significantly increase the likelihood of users consenting to unnecessary services or sharing more personal information than intended. From this research, it is abundantly clear that there are primarily four reasons which makes it imperative for countries to regulate dark patterns.

Need for regulation

First, regulation is essential to protect individual welfare and maintain the integrity of user choice.

At the individual level, these deceptive designs can lead to direct financial loss, as seen in interfaces that add products to shopping carts without consent or hide recurring fees. By preying on users’ inattention or misunderstanding, dark patterns can trick consumers into spending more than intended. This not only harms the individual financially but also undermines the trust and reliability of the online marketplace.

Second, these practices can invade privacy and impose a cognitive burden, leaving users vulnerable to unwarranted data collection. Regulation would serve to prevent these harms, ensuring that individuals are protected from exploitative practices that prioritise profit over user welfare.

Third, on a broader scale, dark patterns threaten collective welfare by distorting the competitive marketplace and undermining trust in the digital economy.

For instance, when companies use dark patterns to lock users into their services or make it difficult to switch to competitors, they effectively diminish market competition and consumer choice.

Regulation would help maintain a healthy competitive landscape, ensuring that companies succeed based on merit and quality, rather than deceptive design.

Fourth, the societal implications of unregulated dark patterns are far-reaching, potentially leading to unanticipated negative consequences. For example, widespread mistrust in online services can emerge as users become more aware of and resistant to these manipulative strategies. This increased scepticism can harm legitimate businesses and deter users from engaging with online services beneficially.

Moreover, the aggregation of user data through deceptive means can have serious societal impacts.

The Ministry of Consumer Affairs has notified guidelines under the Consumer Protection Act, 2019 which clearly state that: “No person, including any platform, shall engage in any dark pattern.” This makes India one of the few countries which is explicitly regulating this menace.

The guidelines explicitly prohibit various dark patterns: “False Urgency”, creating a misleading sense of urgency or scarcity; “Basket Sneaking”, adding unwanted items or services at checkout; “Confirm Shaming”, using language or media to instill fear or guilt; “Forced Action”, compelling additional unrelated actions; “Subscription Trap”, complicating or obscuring subscription cancellation; “Interface Interference”, manipulating design elements to mislead; “Bait and Switch”, advertising one outcome and delivering another; “Drip Pricing”, hiding full price details until post-purchase; “Disguised Advertisement”, masking ads as other content without disclosure; and “Nagging”, bombarding users with irrelevant requests or interruptions.

These practices are deemed unethical as they mislead and coerce users, affecting their decision-making and online experience.

This recognition and regulation of dark patterns is a commendable step toward safeguarding consumer welfare and integrity in the digital space.

The writer is Officer on Special Duty, Research, Economic Advisory Council to the Prime Minister. Views expressed are personal