26 January, 2024

India's 'dark patterns' guidelines and what game developers should know

Ranjana Adhikari, Partner, and Shashi Shekhar Misra and Ruhi Kanakia, Associates, at IndusLaw discuss the ‘dark patterns’ guidelines issued by India’s Central Consumer Protection Authority – from the perspective of game development

Imagine yourself playing a free online multi-player shooting game. The quest is afoot and your opponents have purchased premium ammunition from the game to vanquish you. As you move deeper into the quest, you see pop-ups and suggestions, nagging you to invite your friends to join the game by giving the game access to your contacts list. You gradually realise that even though the game was advertised as free-to-play, you need to make in-app purchases to unlock all levels, which you were not informed of when you started the game. Finally, there comes a point where the game restricts you from advancing to the next level unless you purchase new ammunition or buy more in-app currency. You may have unknowingly become a victim of ‘dark patterns!'


On 30 November 2023, India’s Central Consumer Protection Authority (“CCPA”), the statutory body under the federal Consumer Protection Act, 2019 (“CPA 2019”), notified the ‘Guidelines for Prevention and Regulation of Dark Patterns, 2023’ (“Guidelines”). The Guidelines have been framed in exercise of the CCPA’s powers under S.18 of the CPA 2019 and came into force on the same date.

The term ‘dark patterns’ refers to deceptive online practices, especially in relation to a website or app’s user interface, which either mislead, coerce or manipulate consumers to impair their decision-making ability in relation to their choice of products/services. Dark patterns are designed to take advantage of the way people habitually use websites and apps to cause them to do something they didn’t originally intend. The Guidelines define dark patterns as a deceptive UI/UX design which amounts to either an “unfair trade practice,” a “misleading advertisement” or a violation of consumer rights. The Guidelines are applicable to all platforms which systematically offer goods or services in India, as well as to advertisers and sellers.

Dark patterns prevalent in games often make players feel disempowered and frustrated since the deceptive tactics strip away their control

While the definition of dark patterns under the Guidelines is fairly wide, on a joint reading of guidelines 4 and 5, one may argue that the prohibitions are currently restricted to the 13 specified dark patterns described in Annexure 1 of the Guidelines (the said Annexure may be updated by the CCPA from time to time). However, since the opening text of Annexure 1 itself says that the Annexure is for “guidance” and the “facts or conditions may entail different interpretations,” platforms must ensure that practices adopted for any marketing, user acquisition or as a part of the UI/UX don’t fall within the ambit of the definition of dark patterns under the Guidelines. Platforms must also ensure there is sufficient rationale built into the systems and processes to demonstrate that the UI/UX is not meant to be deceptive; and does not mislead or trick users to do something they originally did not intend or want to do.

This short write-up attempts to discuss some practices that can potentially be considered as dark patterns in game formats for the purposes of the Guidelines, and what the industry can consider to move towards more ethical UI/UX designs.

Dark patterns in game development

While the primary objective of game design is typically to create a seamless user experience, entertainment and spectacle are intentions not too far behind. However, game designers often incorporate dark patterns within the game’s design to serve platform-favoured purposes such as prompting the player to make more in-app purchases. These intentional design choices can create negative experiences for players, working against the player’s interests. Dark patterns commonly found in games could be categorised into three main types: temporal, monetary and social capital-based dark patterns. While some of the illustrations that we have discussed in this section may not overlap with the ‘specified dark patterns’ in Annexure 1 of the Guidelines, the wide definition of dark patterns under the Guidelines could potentially also include these practices.

Some games have dark patterns embedded in them designed to specifically attract children. For example, mechanics such as loot boxes may tend to target the uninformed child user, influencing them to purchase them without understanding the real-world financial implications. In addition, in-game advertisements, typically videos or pop-ups, can influence children and prompt clicks or purchases by them. Similarly, product placements may lead children to develop preferences or associations with brands without recognising the commercial intent. It is pertinent to note that the European Union expressly recognises “emotional steering” as a dark pattern, whereby users may be manipulated to purchase more in-game currency or provide more personal data.

A frequently occurring temporal dark pattern is “play by appointment,” where players are compelled to adhere to the game’s schedule rather than their own. Failure to comply with the game’s timeline usually results in some form of penalisation. This often pairs with the monetary pattern of “pay to skip,” where players faced with waiting periods can expedite the process by spending real money.

Dark patterns prevalent in games often make players feel disempowered and frustrated since the deceptive tactics strip away their control. It, therefore, becomes imperative for the gaming companies to prioritise ethical design practices, ensuring a more enjoyable and trustworthy gaming experience for the players.

The term ‘dark patterns’ refers to deceptive online practices, especially in relation to a website or app’s user interface, which either mislead, coerce or manipulate consumers to impair their decision-making ability in relation to their choice of products/services

Some ‘specified dark patterns’ relevant for gaming as per the Annexure under the Guidelines

Annexure 1 to the Guidelines specifies 13 dark patterns that are expressly prohibited. These are: ‘False urgency,’ ‘Basket sneaking,’ ‘Confirm shaming,’ ‘Forced action,’ ‘Subscription trap,’ ‘Interface interference,’ ‘Bait and switch,’ ‘Drip pricing,’ ‘Disguised advertisement,’ ‘Nagging,’ ‘Trick question,’ ‘SaaS billing’ and ‘Rogue malwares.’

We now discuss some of these to illustrate how the gaming industry may inadvertently fall foul of the Guidelines. In “Drip pricing,” the actual price (or elements thereof) is not revealed up front when the consumer is considering the purchase decision. Gaming platforms/publishers sometimes advertise games as free even though usage beyond a particular time requires in-app purchases to continue. Also, at times, a gamer discovers after purchasing a full game that additional payments are required to unlock all its features.

“Subscription traps” (also known as “forced continuity” or “immortal accounts”) function in two ways. A gaming platform may either attach very unfavourable consequences with unsubscribing from a service or the process for unsubscribing may be long-drawn, confusing, cumbersome or difficult to find and initiate. Forcing consumers to share payment details or related identity verification details or authorise auto-debits for a free subscription is also covered under this specified dark pattern.

The UI/UX of some games tend to create a “false urgency” to mislead consumers into making an immediate purchase or taking an immediate action, which may lead to a purchase. This includes showing false popularity of an in-app purchase or stating that quantities of a particular in-app purchase or paid feature (or their discounted versions) are more limited than they actually are.

The “forced action” dark pattern manifests in different forms. For instance, gamers might be prohibited from continuing with the original gaming experience unless they upgrade to a premium version, or the platform may impose a mandatory newsletter subscription as a pre-requisite for unlocking some game levels or features. Some games also leverage social pressure, requiring players to share details of their contacts or social networks to access some benefits.

Dark patterns sometimes also gather excessive or unnecessary personal data. This is likely to fall under the “forced action” (as discussed above) and/or “nagging” dark pattern under the Guidelines. Employing UI/UX design that places the privacy policy acceptance button more prominently than the button to read the policy is a classic example of “interface interference” under the Guidelines. Over-complicated privacy settings, whereby a website bundles together various permissions under a single setting or uses language that is ambiguous and jargon-heavy, making it highly tedious for the user to navigate through multiple steps, may also be seen as a dark pattern.

Repercussions for non-compliance

Unlike the provisions of the draft version of the Guidelines, the Guidelines do not specifically mention the penalties non-compliance entail. However, since the Guidelines classify dark patterns as an “unfair trade practice,”  “misleading advertisement” or “violation of consumer rights,” non-compliance may trigger the penalties outlined under the CPA 2019 for these contraventions. This could, inter alia, result in fines of up to INR 10 lakhs (US$12,001.64), extending to INR 50 lakhs for subsequent contraventions. The CPA 2019 also provides for criminal penalties in some instances of misleading advertisements but the same has not been imposed till date. Since the law is new and evolving, one should keep a close eye to see in what instances these may be imposed. As per official government press releases, consumers can report instances of dark patterns and manipulative online practices through the National Consumer Helpline or via WhatsApp messages to a designated number.

The UI/UX of some games tend to create a “false urgency” to mislead consumers into making an immediate purchase or taking an immediate action, which may lead to a purchase

The way ahead

The gaming industry should bear in mind that the raison d’etre of the Guidelines is to safeguard the consumer from being misled, deceived or falling prey to unfair trade practices – all of which are a violation of consumer rights under the CPA 2019. The Guidelines should not be interpreted as prohibiting even those UI/UX features or trade practices which do not indulge in any of the foregoing. Game developers should strive to incorporate design practices which are unambiguous, user-friendly and in line with consumer rights. Platforms and publishers should also check whether any existing UI/UX features are being hit by the Guidelines or not. The need to educate marketing teams and product design teams on these Guidelines is a must, and going forward, platforms must remain vigilant in identifying and mitigating design flaws that may create adverse experiences and ensure that ethical practices are reflected, both in game design and privacy policies.

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