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Disguised ads, hidden costs — regulator ASCI now tackling ‘dark pattern’ ad tactics, says its CEO

'Dark patterns' are deceptive practices that try to influence consumer behaviour. Self-regulatory body ASCI is also looking at guidelines for data privacy, says CEO Manisha Kapoor.

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New Delhi: Dark patterns — questionable tactics used by advertisers to influence consumers to make decisions they otherwise might not have — are increasingly becoming a focus area for the Advertising Standards Council of India (ASCI), the body’s CEO Manisha Kapoor told ThePrint in an interview, adding that a taskforce has been put together to tackle the increasingly-prevalent issue.

The ASCI, in the recent past, has released reports that highlighted one of the major problems within the industry — misleading ads. From ed-tech platforms to crypto companies, plenty of industries incorrectly depict products and services and have come under the self-regulatory body’s radar.

“Dark patterns is something that is on our radar and I think very shortly, we will put out a position paper and some suggestions on how we are going to tackle this,” Kapoor said. “We have already put together a taskforce in the last couple of months that has been examining this issue, and studying the different dark patterns.”

Reports from various regions, especially from the US and the European Union, have described some “dark consumer patterns” in advertisements online wherein organisations try to influence user behaviour via deceptive practices.

This can be in the form of disseminating spam emails or a sudden infusion of video or audio content while browsing a website, or offering a barter system wherein users are given access to an application only after they refer a friend.

The Ministry of Electronics and Information Technology is currently paving the way for a new Digital India Act that will involve aspects pertaining to e-commerce, data privacy and misleading ads online. In fact, when releasing the amendments to the IT Rules last month, Minister of State for Electronics & IT Rajeev Chandrasekhar said “misleading ads” had been identified as a major problem.

Some common forms of dark patterns that have been identified include: Customers being misled with hidden costs on items they buy online, abrupt disguised ads that pop up while scrolling, asking for social media permissions before engaging in an exchange, spam emails from shopping websites and brands, etc.

“This is something that is of increasing concern and is creating new kinds of consumer vulnerabilities,” Kapoor explained. “Some of it (dark patterns) is in the area of misleading advertisements; at a principle level they get covered under our guidelines already — (dark patterns) are misleading irrespective of what medium it is on and where it is published. They (our guidelines) provide an umbrella kind of protection against certain types of patterns.”

Also read: Dear social media influencers and advertisers, stop encouraging dangerous driving habits

Data privacy in advertisements

The ASCI is also mulling guidelines that look into the data privacy aspect of advertising, according to Kapoor.

However, treading the line between privacy concerns and data-sharing that genuinely improves the user experience is a challenge, she said.

“Privacy is a slightly tricky issue; certain data that either advertisers or websites store about you makes your experience seamless as well,” Kapoor explained. “You can stay logged on through your email on certain sites that you visit often; you don’t have to enter your data every single time. So those are ways in which data is collected which makes the browsing experience or user experience more beneficial for you and smoother for you.”

But the key issue that remains here is of transparency — companies don’t exactly lay down how much a customer is consenting to.

“There is data that organisations use which actually makes your own experience better,” the CEO asserted. “The issue is for them (being allowed to) to use your data and you understand that consent well. The second is, what is the purpose of that consent? Is it to make my experience smoother? But have I consented to sell my data to another party? A lot of times this information gets overwhelming. We may not know what exactly ‘cookie preferences’ mean.”

Catching surrogate ads tricky

A month ago, the consumer affairs ministry issued notices to liquor brands for engaging in surrogate advertising — indirectly promoting a product that can’t be advertised openly. The ministry said alcohol brands were advertising themselves through music CDs and non-alcoholic beverages, which falls under “misleading ads”.

However, ASCI realises that there’s no law that prohibits an organisation from presenting its brand extensions under its own banner — which, again, becomes tricky, Kapoor said.

“There are challenges in both gaming and alcohol; these are state subjects and there is no central law,” she explained. “At ASCI, we have created a certain set of criteria: This is what we will be okay with and beyond this, it will be considered a surrogate. The challenge is that the Central Consumer Protection Authority (CCPA) guidelines say that surrogate advertising should not be allowed, but the brand extension part should be allowed.”

“The law allows you to launch products in other categories using the same brand name,” Kapoor added. “It is difficult to draw a line between brand extensions and surrogate ads.”

(Edited by Nida Fatima Siddiqui)

Also read: Crypto ads stopped but marketing stays alive on Reddit, Telegram, Twitter

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