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Abstract

Dark patterns’ are consumer targeted marketing strategies that capitalize on cognitive biases of consumers’ propelling them to make decisions, contrary to their intended preferences. The term dark patterns coined by user designer Harry Bignull has gained traction recently, due to its correlation with psychological responses that are produced through nudges that are unaligned to the consumers’ original preference. The consumer responses elicited through the use of such dubious nudges have a direct correlation with the way human brain functions. These covert strategies employed by digital marketing platforms capitalize through behavioral science, aimed at their economic growth compromising the consumers’ free, fair and independent decision making capacity. The use of these algorithmic strategies to drive businesses have multiple legal tangents with a direct bearing on competition, contract, privacy and consumer law. The authors’ in the first section of the paper examine the various forms of dark patterns with the aid of graphical representations, that augment the argument of the authors’ that dark patterns are manipulative tools employed to economically disempower consumers’.. In the second section of the article, the authors’ highlight the erosion of decisional privacy of the consumers’, a phenomenon that overtly seems to be an exercise of free will but is a tacit capitalisation of cognitive biases of consumers spurring them to inadvertently take actions against their preferred interest. In the third section of the article, the authors’ analyze the existing Indian regulatory architecture and propose the relevant provisions that can be used to address these algorithmically induced marketing strategies. In the final section of the paper, the authors propose the changes that can be brought in the Indian regulatory architecture, specifically under the Consumer Protection Act 2019, to protect the consumers’ from the jeopardizing impact of dark patterns.

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