[This Article has been authored by Avantika Jain, a 4th Year Student at University School of Law and Legal Studies, GGSIPU and Arnav Sinha, a 4th Year Student at Maharashtra National Law University, Mumbai.]

Introduction

In the digital age where the consumers are increasingly exposed to screens, User Interface and User Experience (hereinafter, “UI/UX”) have become significant in dictating and shaping up the consumer behaviour. While generally these are used to improve the experience of the user and the usability and accessibility of the websites, there is potential of misuse. Acknowledging this, the Central Consumer Protection Authority (hereinafter, “CCPA”) has put forth the Guidelines for Prevention and Regulation of Dark Patterns, 2023. These guidelines term the misuse as Dark Patterns and define it as, “any practice or deceptive design pattern using user interface or user experience interactions on any platform that is 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”.

This article attempts to argue that the problem with Dark Patterns lies not in defining them but in proving their presence before a regulatory authority or a court of law. It tries to identify two distinct but complementary challenges under the current regulatory framework of the Bhartiya Sakshya Adhiniyam, 2023 (hereinafter, “BSA”). First, a doctrinal misclassification of screen-based electronic evidence under the BSA, and second, a practical difficulty in establishing intent behind interface design under the current regulatory framework of BSA.

Classification of Screen-Shots and Screen-Recordings

In cases involving dark patterns, the deceptive patterns are embedded within the UI/UX itself, hence the primary, and often the only, proof of these deceptive patterns is screen-shots and screen-recordings captured during the user interaction. 

These screen-shots and screen-recordings, as per Section 63 of the BSA, fall within the category of “secondary” electronic evidence. This classification is rooted in the assumption that a website or digital interface exists as a pre-existing stored electronic record (i.e., original source), and any capture of its contents, whether through a screen-shot or a screen-recording, is a copy derived from that original source, which itself remains independently accessible and capable of being reproduced.

However, such logic does not hold good in cases of dark patterns. Unlike static websites that display the same interface to every user, dark patterns operate through dynamic and personalised mechanisms, wherein the interface available to a user is generated in real time based on various variables such as behaviour, location, device, or time of access. As a result, the interface that is captured generally does not exist as a pre-existing stored electronic record capable of being independently accessible or reproduced. In such cases, screen-shots and screen-recordings do not merely reproduce an original record but instead capture a fleeting user-specific interaction as it unfolds. They are, in effect, closer to recordings of a live digital event than copies of a  pre-existing stored document. This puts them more closely with primary evidence, particularly under Explanation 6 to Section 57 of the BSA, which recognises simultaneously created electronic outputs or transmissions as primary evidence. 

The continued classification of such material as secondary evidence, therefore, clearly reflects a case of misclassification that warrants reconsideration.

Establishing Deliberate Design in Dark Pattern Cases

Establishing dark patterns before a court of law or a regulatory authority is a two-staged process, the first being whether a deceptive pattern exists to begin with, and the second being whether the deceptive pattern was a result of a deliberate and intentional choice. Only after fulfilment of both the stages can it be said that a dark pattern exists and that it is attributable to an intentional choice made by a particular platform. 

Evidence in cases of dark patterns, while capable of conclusively demonstrating the existence of a deceptive pattern, does little to reveal whether that pattern/interface was deliberately constructed to deceive. Now this is because, a screen-shot or a screen-recording merely captures the final visible output of a designed interface. The design decisions, and deliberate choices made by the designers and developers that eventually lead to the final visible output remain entirely invisible. A pre-ticked checkbox or a disguised opt-out button, can be as consistent with an intentional deceptive strategy as with an unintentional design mistake. Intentionality, therefore, in cases of dark patterns, resides not in the final visible output but in the process that led to it being generated.

Consequently, in order to prove that a deceptive UI/UX was purposefully designed to mislead or exploit users, it becomes essential to rely on a deeper, system-level data that reflects the backend design related decisions and implementation strategies. This can include data from backend logs about user interaction, A/B tests of various designs, version histories showing changes in interface design over time, etc. 

Courts in other jurisdictions such as United States, France, and Italy, have already recognised the importance of such data in establishing intentionality in dark pattern cases. In India, however, access to such evidence is a herculean task, as this data is either exclusively held by the very platforms accused of using dark patterns or, in many cases, not even retained systematically. 

Recommendations

In the view of the above issues, it becomes essential to recalibrate the evidentiary standard in a manner that is technologically realistic and up to date. 

Firstly, screen-shots and screen-recordings in the cases of dark patterns, or in any other context wherein they do not merely reproduce a pre-existing electronic record, ought to be reconsidered in their classification. They should be either classified as primary evidence under Explanation 6 to Section 57 of the BSA, or in the alternative if such a reclassification is not feasible, be recognised as an exception and accorded evidentiary weight similar to that of primary evidence. In practical terms, this may be achieved through an amendment to the Explanation 6 to Section 57 of the BSA, expressly recognising real-time user-generated screen-shots and screen-recordings as primary evidence or even via procedural rules permitting courts to accord greater evidentiary weight to such records where their authenticity is not in a serious dispute.

Secondly, there is a need for a statutory or regulatory mandate requiring digital platforms to systematically retain backend information such as user interaction logs, A/B testing data and version histories of the interface. As in absence of such information, it would be very difficult to conclusively determine if a particular dark pattern was a result of an inadvertent error or an intentional design choice to manipulate and deceive the user. 

Together, these suggestions seek to bridge the gap between the evidentiary framework as it currently stands and the technological realities of how dark patterns operate and how they may be proved before a court of law.