Have you tried crossing out an irritating ad while reading an article online, but the ‘cross’ is almost invisible or the ad itself refuses to go away? Well, you’ve encountered a dark pattern. Vani speaks with Manisha Kapoor about dark patterns, why you must be aware of how you as a consumer might be manipulated, and what you can do better as an advertiser to not win the consumer’s ire!
01:38 – What are dark patterns?
07:30 – Taking action against dark patterns
22 : 45 – Paid reviews and disguised advertising
26:00 – Confirmshaming
Read the complete transcript below:-
Manisha, we have a really, really interesting subject today and I’ve been reading up a little bit on the press reports on what we call dark patterns but I think in general there’s very little awareness of what is a dark pattern, what is it that consumers are subjected to in your view? And why is it that you are taking this up, you know, with the force and the vigor that you are taking it up now. Tell us what are dark patterns to start with?
So I think dark patterns are, you know, something that we’ve actually all encountered. I don’t think there is a single person on the planet who’s using the internet in some way today who hasn’t encountered dark patterns. Now it is basically, a kind of interface that, you know, makes certain choices for you or presents choices to you in a way that may not completely be apparent to you in terms of what are the consequences of those choices. So it is about some trick which has been used to manipulate user choices, on either social commerce or eCommerce or just on any kind of website. And I think given how prevalent all of these are, like I said, it’s very likely that all of us have encountered some kind of a dark pattern and these are actually, they creep into our transactions or our interactions in a very kind of insidious way, you know, whether it is pricing and what you’re paying for a product, whether it is how much information you are sharing with the platform to move to the next screen to what kind of prices are you paying? Do you have transparency about prices, do you know how much stock is available, et cetera. So I think these are the different areas, you know, that dark patterns kind of find themselves in and we as consumers kind of encounter them. And just given how prevalent, you know, the whole ecosystem of internet and social media and eCommerce is in our lives. I think this is something that impacts, as I said, many, many people across the world and which is why it’s a concern. It’s a very widespread kind of phenomena.
Tell me something Manisha, when you talk about, you know, how much information you’re sharing on the platform or what kind of pricing you are seeing or stocks limited, et cetera, et cetera, tell me a lot of this, will it not be driven by the algorithm as they call it or will it not be covered under the TNCs that we put a tick mark on? Will it not be a function of the changing dynamics of stock pricing, what we call capitalism? How would this be different from that, I mean, what is a dark pattern? Would it be something that the company willfully does to mislead or manipulate the consumer?
No, absolutely. So I think it is the designing of the interface that is done in a manner which is beneficial to the service provider but is perhaps not a great choice for the receiver. And I think that’s the, you know, that in a sense would define what a dark pattern is, where it compromises the consumer value in favor of shareholder value or stakeholder value. In an ideal scenario, there needs to be a balance between what a consumer wants and typically you would see that many organizations actually flourish when consumers see a lot of value. In this case, what is happening is that you’re actually eroding consumer value in some way in order to increase the value for the advertiser in some. So that is, I would say the difference between a dark pattern and an algorithm which in a sense presents choices, but does so in a fair manner. So the issue is not about the algorithm, it is about what is the intent of that algorithm?
And tell me over here Manisha, while you are waging this battle on dark patterns, would this not also be a lot about the competitive context in the sense, in the various, you would know this as well, we’ve all worked at big FMCG companies and you know, this battle on how much plastic and how much garbage are we creating has been on since at least two decades, if not longer. And I remember conversations in boardrooms where we would say, you know, should we stop sachet, should we stop plastic? And then we’d say, but what about all of the other FMCG companies? Everybody’s in a sachet. Everybody’s plastic, everybody’s creating guns and this is what the consumer is only willing to pay for. The consumer’s not gonna pay higher in that sense, even with reference to dark patterns. How do I, as a marketer or as an advertiser, take a stand to genuinely give value to my consumer, genuinely not put out anything with the intent to mislead knowing that I face competitive heat and my competitors might go under the radar and yank away business from me.
Yeah. So I think, you know, none of these things have an overnight solution. But I think the first step is to establish at least what the intent is? And I think we are perhaps not there yet. Do we even acknowledge that this is a problem or have we taken for granted that this is the way in which business is done? And I think that’s where the problem starts. I think if there is enough acknowledgement that, you know, there seems to be some degree of unfairness in the way that these patterns have been kind of brought forward. I think once you have the intent or you acknowledge that it’s a problem, I think there are enough intelligent people and enough honest people who will figure out what the solution is. It may not be an elegant solution to start with, but I think there will be a set of teams, there will be a set of people who will start working on those solutions. I think perhaps we are at that stage where it is just taken for granted and not even acknowledged potentially as a problem. So I think the other challenges in terms of competitiveness, all of those come a stage later and I would say that just like in the case of plastics, there is a concerted effort to try and resolve what is at least acknowledged as a problem. And I think we are somewhere away from that when it comes to dark patterns.
I think that’s a very good point, Manisha. That’s very true. You’re right, I mean, unless if it weren’t for you, you know, raising the decibel levels on this, it is not something that even came into my consciousness. I didn’t even know that there is something called dark patterns and you are right, it’s often been the case. For example, I was reading in one of your articles, it’s true that several times you’re on a website and you are desperately clicking on the cross, you know, so that you can read the article, but you instead land elsewhere and it’s such an irritant that you eventually don’t end up getting what you went to that article for. And, yeah. So, you know, how does one take action on this because Manisha in the internet world, it’s hidden in so many nooks and crannies and it’s so all pervasive in a sense like there’s some sort of an irritant and you don’t know whether this is, you know, is this done with the intent to mislead or not or to dig under and figure what’s right, what’s not. This would be a very, very massive battle to wage, isn’t it? I mean, how would you uncover it and would you principally rely on consumer complaints?
So I think, you’re absolutely right that any kind of digital advertising today risks within a really, really vast ocean of advertising, right? Just the sheer number of advertisers, the number of advertisements on digital is, it almost seems like it’s infinite. And how do we kind of pick on some of these. So, a couple of things. One is of course, you know, through some raised consumer awareness, when consumers start to spot these patterns and we are trying to also work with students, you know, because they’re on the internet all the time and, you know, this is something that might interest them. So we are trying to see whether we can pilot a few projects with students identifying the websites that they visit, you know, what are the dark patterns that exist over there? So, you know, we are doing some exercises of that nature. Of course consumer complaints, we would be happy to handle and we will also look at how technology can help us to uncover some of these. Just as there are algorithms to create these dark patterns, there will also be algorithms to detect dark patterns and I think this continued investment in technology. And our focus on digital will help us in that sense take more suo moto and proactive action and not just wait for consumer complaints. But I think this is an evolving space. There’s always a little bit of a cat and mouse game that happens. But yes, I think eventually it is the deployment of technology to uncover these that will need to be done. I also want to actually bring in the earlier point that you mentioned about how frustrating it can sometimes become, you know, for consumers to then be in the online space. And I think again, you know, people who are here for the long term will recognize that if you constantly create experiences for consumers that are frustrating, that are uncomfortable for them, that eventually those are spaces they will avoid. You don’t want them to be on your site reluctantly. You like them to be there with an objective to engage with your site in some way. So I think eventually the consumer experience is ruined and I would say that there won’t be advertisers and there won’t be service providers and platforms that don’t want to go down that path. So I think competitive pressures will always be there. So even in traditional advertising, someone may say that I can’t make this claim because I’m honest, but look at the number of people doing it. So I think that can always be a stance but I don’t think that stance serves honest advertisers well in the long term because eventually the consumer experience of that industry or that platform or that kind of interaction is unhappy and then eventually consumers will abandon it and look for things which are better experiences. So I think it is in the industry’s own interest to sort out these issues, through collective action and through these kinds of conversations. So I understand that there will not be an easy solution, but I think the right minded people need to come together to find solutions for this.
So I remember even in the earlier episode that we’d recorded on, you know, ASCI guidelines on influencer marketing. I remember even there you deployed heavy use of technology and you partnered with Dhruv over here. I think the solution of partnering with students is very interesting to be able to uncover this. And yes, you are right, one has to first start with just making people aware that there is this thing called dark patterns, know when you are being manipulated and when you are sensitized to this then you will raise an alarm and also start to boycott places which tend to cheat in a way. Tell me Manisha, what kind of remedial action or what kind of punitive action would you take? To define the degree of the offense would be quite difficult, would this categorize, I mean, how would you categorize the degree of offenses or the extent of mal intent?
Yeah. So I think, in that sense, the action ASCI takes has been well established. We are not a punitive body, we are not a government or a statutory body, right? Our endeavor is to get voluntary compliance. Now, I know that a lot of people feel unhappy with voluntary compliance and feel that everything should be punitive. But let me tell you the advantages of voluntary compliance. One is that it’s much faster. If you look at statutory action, we all know that it runs into months, years, if not decades. And then, you know, what is really the value of that resolution after such a long time for something which is a campaign that may have lasted only for a day or two or a month, right? So, then the second thing we should remember is that voluntary action costs the taxpayer nothing. ASCI as a body has been funded by the industry. The industry pays us to be an independent body that keeps advertising clean and honest. And there are always punitive actions that the consumers can apply for or deploy, right? I mean, there are the consumer quotes and there is the CCPA now. And, you know, there are the quotes of law. So I think those options are available. So it’s not as if a consumer who wishes to see punitive action has no other alternatives. But ASCI becomes in a sense, the first line of defense where our focus is on voluntary compliance for the reasons I mentioned that it’s PD, it’s up to date. It can provide remedies for things which are very current, for example, when you look at dark patterns or influencers or crypto or gaming, you know, these are like industries that are very heavy advertisers in the current times and these are the new concerns. And self regulation is able to kind of quickly incorporate those as part of its code. Our code itself is almost like a living document. So I think those are the advantages of voluntary compliance. But yes, for repeat offenders, for willful offenders, I think the government needs to then come down with a more heavy hand and they have the powers to do that. So I think there is a balance of a variety of solutions available to consumers and others who feel, you know, such kind of advertising is problematic. And the consumer has a choice as to which resolution they wish to pursue and, you know, each of them has certain pros and cons.
Manisha, tell me something of this scale that you are attempting. This would require marketing in itself because in a sense, what you are attempting to do is to educate the consumer on something that the consumer isn’t aware of right now.
No, absolutely. I think again, consumer education awareness is like an ongoing, you know, endeavor. And again, you know, it’s not just ASCI, but you know, you have a lot of great consumer organizations in the country, you have the Department of Consumer Affairs and it is, I think, our collective objective in some way to make sure that the consumers are more aware. So I think we will continue our efforts but I don’t think, you know, any one organization can kind of complete that mandate. It’s too vast, and different people at different levels. So starting from how do we make even students aware of this, you know, they’re one of the largest cohorts who will become aware citizens tomorrow, who will enter the industry tomorrow. So, how do we reach out to different cohorts of people who form sizable groups of consumers and how do we educate them, not just about dark patterns, but about all the other things, you know, about advertising and practices other kind of, you know, how consumers can keep themselves safe, how they can call out, how they can recognize some of these problems, how they can call those out, which are the resolution forums that they have the option for. So I think it’s a larger agenda, you know, which the government consumer organizations, responsible advertisers and a body like ASCI all need to work together on.
And Manisha, tell me in this, while we are talking about dark patterns and we’ve discussed what dark patterns are, but would this also extend to the use of what should I say, you know, brain biases or consumer psychology that is used by marketers in order to keep consumers hooked or in order to keep consumers, I mean though over there it’s an ethical line, like even over here, a lot of it is, like you said, of course there is mal intent involved but strictly, if I were to contend this in court and if I were to say, look, it’s all covered in the fine print on my terms and conditions, to which you as a consumer, you know, by your own volition, you put a tick mark to, then there is no way that you can contest me in court. You should have read the terms and conditions, they’re all available.
I think, all of us know that what is a reasonable effort that you would expect the consumers to put, if really the consumer has to be a technical UX expert to understand all your terms & conditions, it means that you are trying to mislead consumers. So I think those are things which, as I said, what would a reasonable consumer understand? We are not looking at a consumer who, let’s say, may be highly vulnerable, but at the same time, we don’t wanna look at a consumer who’s a bigger expert than the advertiser. So I think that line is something that, you know, I’m sure quotes would use as well to determine a particular case. But I think coming back to the early part of your question is that don’t advertisers deploy consumer psychology? I mean, the whole area of UI UX design is a study of how we as human beings interact with a screen, where do our eyes travel to? What do we do on a screen? Because typically screens have a lot of information. What is the advertiser highlighting? What choices are highlighted versus what choices are suppressed? And that is an integral part of UI UX design. I think all that we are saying is that in providing for those highlights or those choices in the way that you are expecting the consumer’s journey across your interface that makes sure that everything is fair. So let me give you a simple example. Let’s say you are signing up for an email service or something like that, right? And the choice that is highlighted to you is that, yes, I agree with terms and conditions and move on. And let’s say a small print says that, you know, see what are the key terms and conditions or what are the other choices available? And then you’ll find a few other choices that, let’s say include things like, I don’t want to receive promotional material or that you’ll use my website with your or you’ll use my details with your platform partners, et cetera. The question is, why can’t each of those choices be equally presented to the consumers? A single screen where there is no highlight or no attempt to get the consumer to choose something which they may not want to do. I think that’s really the crux of the issue, saying that let the consumers make an informed choice and make sure that information is given in a manner that is transparent but not overwhelming also for a consumer. So I think that’s the balance that, you know, people who really, I would say value their own brands in the long term and their consumers must make and I think we are already starting to see some consumer pushback, some kind of conversation globally on these issues and I’m sure it’s not going to be any different in India.
Wow. Okay. Fantastic. You’re absolutely right. Now that you’re saying it, that’s so true. I mean, there are so many times when between the allow and the no thanks, the no thanks is virtually invisible.
Yeah, sometimes you actually have to really hunt for it.
Yeah, exactly. You’re absolutely right. So, it’s not just the stuff that you see on the internet and on screens, right? I mean, there is a company that I interacted with, I don’t want to name the brand, but for example, you know, the follow ups that you get on SMS or, you know, the constant bombardment, even though you believe you’ve unsubscribed for that service and you are still getting, it’s almost as though you have to live with that advertising. You are bombarded with advertising messages even though you, you feel, I’ve done everything to unsubscribe, I’ve done everything possible to get off that list, whether in the online world or in the offline world would also fall under the purview of this conversation, right, Manisha?
Yeah, so I think that’s a larger conversation which is really about practices and not necessarily advertisements alone. Let’s say consumer acquisition practices or consumer engagement practices. Now some of them don’t actually fall under ASCI’s purview. But yeah, they definitely are in the larger realm of consumer protection and there would be different kinds of entities looking at those issues. But yes, I think, it isn’t dealing with the online space and even the examples you gave, whether it’s SMS, whether it is, you know, at some point you’ve interacted with this brand in some online space and that’s how you’ve kind of got incorporated with them. So that definitely happens. We also see actually, I know of so many even physical stores, you walk in and, you know, at the billing point, they will ask you for your phone number, if I’m just buying a loaf of bread from your shop. So I think, again, the idea of having some control over what your data is being collected for and used for, you know, is reasonable for consumers to expect. See, again, if you look at now, I’ve started seeing some sites having this option and I think I’m quite happy about it. They will transparently say, what are the cookies, so you use essential cookies, which are basically for the performance of the site, but there are additional cookies which, let’s say will track your location or, you know, will receive your offers and you can disable those. So I have now started seeing some websites giving you those options where you’re clear again, what is your information being used for. And sometimes you don’t mind your information being used if it gives you a good experience. Simple things like saying that, I want to stay logged into the sites that I go to very often or I don’t want to enter my credit card number every single time I do a transaction on a site that, again, I go to very often. So those are also, in some ways you have agreed to share your data for a certain convenience in return. And I think, you know, if it is used for that purpose, it’s all fair and I think it also makes the digital experience smoother for us as consumers. I think the line is crossed when it is used for things that you didn’t realize you had given permissions for, you know, because it was framed in such a complex way that you didn’t really understand what was going on. So I think just that simplicity, not overwhelming consumers and not putting a tick mark to this whole thing saying that I’ve explained terms and conditions. And this is a common problem, again, not just in the online world. I’m sure any of us who’ve bought a house have signed the agreement without understanding 70% of what we are signing up for. And I think there are now quotes holding that you may have signed an agreement but it doesn’t mean that the builder can get away with everything. So I think we will see more and more precedents where, you know, what a reasonable consumer might understand and expect when they’re signing a contract or signing up for a service. What might they expect will become an important aspect in arbitration as well.
Fabulous. I wish this could be taken up as a subject in colleges because now given that we take the online world so for granted, I mean, you walk into a store and you want to first check how much is it available online? You do your research online, you’re looking at reviews and customer testimonials, et cetera, online. So the fact is that in some ways, without the mobile, we all feel entirely incapacitated to go through life and in that scenario, given the context of this conversation, number one, I think UI, UX as a field itself is set to explode.
Absolutely. I think it’s also something that makes our interaction with the online world smoother. So there is a great value to great UX, UI design, right? I mean, certain websites seem intuitive versus others don’t and others seem clunky. It is because of the smoothness that the UX design provides for you and I think it’s just that in doing so can it keep the consumer’s interest in mind? I think that is all that we are saying, but, you know, you’re absolutely right. I think in fact later today, I will have a conversation with the college and I’m going to talk about dark patterns over there. The other thing is that we are working on, is the idea of an ASCI academy, which is really gonna provide for a lot of training, a lot of research in the area of advertising and consumer protection and we are looking to work with not just corporate partners, but also academicians, school students, teachers, consumers, consumer bodies, insight organizations. And we really kind of take this conversation to where it belongs, which is with people, which is with industry and have them engage in this agenda in a preventive way, you know, not just for ASCI to kind of come into their lives when there’s a problem with their ads, but how can we actually help, make the point of creation of advertising more honest and more informed and something that is done with a degree of consciousness. So I think that’s really the attempt with this program that we are working on right now and we should be able to kind of launch it in the next couple of months. But that’s exactly the intent, you know, how do we impact the point of creation?
Yeah, that’ll be great, if one could get, for example, ASCI certified UI, UX experts, not because these experts would super sanitize, you know, your digital assets but because they would understand what makes the consumer consumers take while also doing it in a way that’s good for business and good for society at large, would be fantastic. I have so many entrepreneurs and for everyone actually, you know, constructing a website that gets you business is the first task and everyone’s looking for a UI, UX expert and I think this field is much misunderstood as well, you know, as is the case for most professions but more so for this because this is a young field still, you know, we are still learning and there are the demand supply gap is huge. So if there were any college, if there were anybody that could sort of actually bring curriculum and teach this in a way that gives it principles, that gives it good practices, that helps the common man understand what is good UI, UX, that would be of tremendous value.
Yeah. So I think there are already institutes that teach this. I think ASCIs endeavor would be to tie up with all kinds of academic institutes that are preparing the next generation of people who will be in the industry in different ways who are going to be a part of that ecosystem, whether as advertisers, filmmakers, content creators, UI, UX designers. How do we interact with them? And while they will always teach in a sense of more functional parts of the curriculum, how do we incorporate this idea of ethics as a layer to whatever they’re being taught, that is precisely one of the big objectives of the ASCI academy. So we are, you know, in the process of tying up with several academic institutions as well and we’ll continue to onboard them for the next several months.
Fabulous Manisha. Lovely talking to you. And I’m glad that there are people like you. There are bodies like ASCI that are actually thinking about stuff like this in the interest of the consumer.
Yes, thank you for this conversation.
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