The Consumer Protection Act, 2019 did well to bring ecommerce within its purview under the chapters especially on restrictive and unfair trade practices. Consequently, consumer forums are overburdened with ecommerce abuses complaints. Simultaneously, complaints relating to e-commerce received by the National Consumer Helpline are said to have registered a quantum jump, in fact, trebled between FY18 and FY22. But resolution is painfully slow resulting in consumers with low stakes giving it up. The pull of ecommerce isn’t restricted to megapolises. Tier-2 and Tier-3 cities many of whom are first-timers are getting sucked into the vortex.
Against this backdrop, a new set of guidelines on Prevention and Regulation of Dark Patterns, jointly drafted by the Consumer Affairs Ministry and Advertising Standards Council of India for eventual incorporation into the Consumer Protection Act 2019, is welcome. The draft guidelines seek to prohibit online platforms offering goods and services as well as their advertisers and sellers from using what they picturesquely describe as ‘dark patterns’ — any practice using UI/UX (user interface/user experience) designed to trick consumers into doing what they didn’t intend to do, the guidelines go. Ten specific dark patterns including creating false urgency, forced action, subscription trap, disguised advertising and nagging have been listed. In law especially that breaks new grounds, it is advisedly better to give an inclusive list instead of an exhaustive one like in the guidelines so that the list is open-ended enough for courts and prosecutions to indict offenders.
Ecommerce doesn’t exactly operate in the nether world, and to that extent should not merit universal condemnation or stigmatisation at par with Bitcoin and its clones. That it operates in the virtual world has, however, become yet another get-rich-quick scheme for the unscrupulous. Seeing is believing. In ecommerce you don’t get to see what you buy except sometimes its 3-D images and elaborate descriptions thereof. For good measure, there are reviews by satisfied buyers which those in the know aver are by and large planted. Indeed, it is the anonymity conferred that beckons crooks and fly-by-night operators. Reining them in is easier said than done despite the digital trail they leave. Payment gateways should be held responsible for the acts or omissions of their clients. Lack of payment on delivery option should be the first warning sign and should put the wannabe buyer on guard.
The FDI policy obtaining for ecommerce allows only the marketplace model which means Amazon and Flipkart the two giants cannot follow its obverse inventory model. Yet, the bar is seen to be followed more in breach than in compliance. Briefly, the marketplace model permits only the facilitation role for Amazon — namely, offering its robust portal for thousand of sellers to hawk their wares and collecting payments from the customers on their behalf for a fee or share of the sale price. In other words, they cannot promote the products of a given brand, much less stock them. As said, the ecommerce firms of foreign pedigree know how to bend the law without breaking it.
The desi or Indian ecommerce portals are not burdened by such restrictions. Small wonder, they are mushrooming attracted by the possibility of the kirana and other small traders aboard who see merit in joining, unable to meet the competition provided by the ecommerce platforms. Open Network for Digital Commerce (ONDC) a government initiative in weaning away both buyers and sellers from the Amazons of the world has flattered to deceive though these are early days. Amazon all said and done is a trusted brand in India with timelines more often than not adhered to and prices set at alluring levels which BTW gives lie to the claim of adherence to the marketplace model.
Despite its consumer-friendliness as manifested by home-delivery, ecommerce has its blemishes. For one, it is not suited for size-based products like shoes and garments, thus often entailing returns that are undertaken reluctantly resulting in consummation of transactions often months after their initiation. For fragile products, it is a strict no-no. It also entails considerable expenditure by way of logistics and packing. When you order a product online for delivery at Chennai, it is sourced from a seller in Gurugram but then the seller grins and bears just to stay in business and humour its benefactor namely the ecommerce firm.
The only area where seeing is not believing is services. Cabs, railway tickets and plane tickets are booked online but the monstrosity of the “convenience fee” needs to be eschewed. In fact, it is the other way round — when I buy an air ticket from the comfort of my home, I am saving the airline a host of overheads including on salesman, cashier and counter expenses.
Therefore, the government must do a more wholesome exercise of ecommerce reforms rather than doing it in fits and starts like the ONDC and reining in ten dark patterns prevalent in ecommerce. And that should also include making FDI in retail which at present is a non-starter. Shopping in brick-and-mortar stores not only enables seeing and believing as well as trial of footwears and garments, but also is economical for the economy in general. Logistics and packaging expenses are considerably reduced and roads become a safer place with delivery boys not crisscrossing them menacingly. Weekly shopping, so widespread in the US, in addition is fun and convenient. A trolley full of assorted goods including perishables to last a week and more is any day better, both for the sellers and the consumers.
Large retail outlets are not exactly rocket science. Our own desi firms are capable of doing it if large tracts of lands are made available. Shopping is fun. Online shopping happens in bits and pieces and in fits and starts. That is why the predominantly ecommerce companies in the US have started hedging their bets by buying out brick-and-mortar stores.
S Murlidharan is a freelance columnist and writes on economics, business, legal and taxation issues
