Dark Patterns And Abuse Of Dominance: Prudence Suggests Concurrent Jurisdiction Under The Competition Act, 2002

Dark patterns fall through the cracks of consumer protection law, where enforcement stays weak and penalties trivial. This article argues that when a dominant enterprise deploys such patterns, Section 4 of the Competition Act, 2002 applies concurrently, not as an alternative, giving CCI a stronger deterrent role alongside sectoral regulators.

I. Introduction

Digital interfaces are now the main gateway for commercial transactions. We buy and sell, bank, invest, travel, communicate, and access a wide range of services through online interfaces. The interface is no longer a mere technical feature. It shapes what choices a user sees and which one they take. The intent and objective of design architecture is to enable users to take well-informed decisions.

A countdown clock says the discount ends in nine minutes. A travel site slips insurance into the cart at checkout. A subscription takes one click to buy and seven screens to cancel. These are called “dark patterns.” The Central Consumer Protection Authority (“CCPA”) defines them as deceptive interface or design practices that mislead a user into an unintended action by impairing his autonomy or choice.² They alter switching, ranking, access to rivals and the accumulation of data, vulnerable to users and the competitive process itself. However, many times the design architecture is turned against the interface user.

While the Consumer Protection Law/ Sector specific Regulatory laws can name a Dark Pattern, competition law can bring a total halt to so-called “dark patterns”.

II. Why the Consumer Protection Route Runs Out of Road

The intensity and scope of “dark patterns” were not visualized by the lawmakers when the scope of unfair trade practices was originally formulated. The CCPA’s 2023 Guidelines define dark patterns and list thirteen illustrative practices, from false urgency to basket sneaking to subscription traps. The CCPA’s order against PhysicsWallah in mid-2026 imposed a fine of Rs. 5 lakhs on conduct that had earned about Rs. 2.47 crore from over 21 lakh users.³ Its actions against IndiGo and BookMyShow ended without penalty but in a direction to change the interface.⁴ The enforcement against dark patterns doesn’t seem to be strict and deterrent.

III. Treatment of “Abuse of Dominance” under the Competition Act, 2002

Section 4 of the Competition Act, 2002 prohibits an enterprise or its group from abusing a dominant position. Section 4(2) lists out conduct that amounts to being “Abusive”. Section 4(2) carves out five classes namely: (i) unfair or discriminatory conditions under 4(2)(a); (ii) limiting markets or technical development under 4(2)(b); (iii) denial of market access under 4(2)(c); (iv) tying a contract to unconnected obligations under 4(2)(d) and; (v) using dominance in one market to protect a position in another under 4(2)(e).⁵

The Act also explains the adjudicatory process, namely, the Commission forms a prima facie view and directs the Director General, an office with search, summons and seizure powers, to investigate. It then hears the parties, and if it finds a contravention, it orders the enterprise to cease and desist, direct changes to its conduct, and impose a penalty of up to ten per cent of average relevant turnover for three preceding years. The aggrieved party can also claim, from the National Company Law Appellate Tribunal, compensation to offset its loss caused by abusive conduct.

The Google orders of October 2022 show the machinery at work on design-level conduct. In the Android matter, the CCI found that conditioning pre-installation of Google’s apps foreclosed rival app stores and search engines and imposed a penalty of Rs. 1,337.76 crore with structural directions, including a right for users to choose their default search engine and uninstall pre-loaded apps.⁶ On Google’s Play Store billing, it found the mandatory routing of in-app payments through Google’s own system an unfair condition and imposed a penalty of Rs. 936.44 crore.⁷ Neither order used the words “dark pattern.” However, both addressed forced defaults, bundled conditions and restricted choice. In the WhatsApp matter, the final order of November 2024 found the “take it or leave it” 2021 privacy policy structurally identical to “forced action”, an unfair condition and an instance of leveraging, and imposed Rs. 213.14 crore with a five-year bar on advertising-related data sharing.⁸

The contrast with PhysicsWallah is the whole argument in one line. A dark pattern investigated as a consumer complaint drew Rs. 5 lakhs. The effectiveness of competition law remedies lies not merely in cessation of the offending conduct but also in ensuring that penalties serve the twin objectives of deterrence and disgorgement. Particularly in digital markets, where enterprises may derive significant economic advantages from network effects, data accumulation and scalable business models, monetary penalties must be calibrated to neutralize the gains arising from anti-competitive conduct and deter recurrence of such practices.

IV. Mapping the Thirteen Dark Patterns onto Section 4(2) is as under:

V. The Case for Concurrent, Not Alternative, Jurisdiction

The CCI need not police every deceptive interface or manipulative design choice. Section 4 of the Competition Act is attracted only where a dominant enterprise in a defined relevant market in India abuses its dominant position. Accordingly, three threshold conditions must be satisfied before regulatory intervention is warranted: (i) the relevant market must be defined and the enterprise must be shown to be dominant in that market; (ii) there must be an identifiable abusive conduct; and (iii) there must be a credible theory of harm demonstrating that the interface design results in exploitation, exclusion, or unlawful leveraging, and that such conduct has an appreciable adverse effect on competition, consumers, intermediaries, or competitors.

The obvious objection is regulatory overlaps. If the CCPA already covers a dark pattern, why route it through Section 4? The statutory framework, however, favors concurrence, not exclusive jurisdiction. Section 60 accords the Act overriding effect in event of inconsistency; Section 61 ousts the civil courts; and Section 62 says the Act is “in addition to, and not in derogation of,” any other law. Applying this scheme, the Delhi High Court’s WhatsApp judgment of August 2022 held that concurrent proceedings are permissible where the inquiries only partly overlap, and that the CCI’s jurisdiction survives absent an irreconcilable conflict.⁹ The CCI’s WhatsApp order took the same view: compliance with a data-protection or privacy law does not absolve an enterprise under the Competition Act.

The real conundrum lies elsewhere. It is not consumer-protection versus competition, but sequential versus concurrent jurisdiction. Where a dispute turns on a technical or licensing question within a sectoral regulator’s exclusive domain, the Supreme Court in CCI v. Bharti Airtel (2019) 2 SCC 521 held that the regulator must decide that question first; the CCI’s jurisdiction is deferred, not ousted.¹⁰ If a dark pattern in a checkout flow raises no such technical question, but raises a market-conduct question, it squarely falls within the CCI’s jurisdiction.

VI. Sections 21 and 21A: The Bridge to Sectoral Expertise

Concurrence does not mean the CCI proceeds blind to sectoral nuance. The Act supplies its own bridge. Section 21 lets a statutory authority, the CCPA, RBI, SEBI or IRDAI, refer a question to the CCI. Section 21A is the mirror: the CCI may refer a question to the sectoral regulator, which must return its opinion in sixty days, and the CCI must consider it with reasons.¹¹ The use of this device is obvious for dark patterns too. Whether an insurance app’s prompt is manipulative or a suitability disclosure required by IRDAI, or whether a lending app’s countdown is false urgency or a defensible promotional window, are questions on which the CCI would gain from the regulator’s view, just as the CCPA would gain from the CCI’s view on when an interface crosses from nuisance into foreclosure.

The mechanism has been largely unused. The Competition Law Review Committee found fewer than ten references by the CCI to sectoral regulators, and not one the other way, in the Commission’s first decade. The Competition (Amendment) Act, 2023 has since strengthened Section 18 to let the CCI enter into memoranda with statutory authorities.¹² A formal understanding among the CCI, RBI, SEBI, IRDAI and TRAI would let each apply its own expertise, avoid inconsistent outcomes, and ensure dark patterns are seen through both a sectoral and competition lens.

The sectoral picture is uneven but converging. In e-commerce, the Consumer Protection (E-Commerce) Rules, 2020 already require affirmative consent and single-figure pricing. In banking, the RBI’s digital lending directions and Key Fact Statement address drip pricing, and its Responsible Business Conduct framework bars default-to-acceptance consent and compulsory bundling from 2027.

SEBI’s proposed Common Advertisement Code imports the CCPA patterns into securities communications. IRDAI has directed insurers to audit their digital journeys. TRAI, by contrast, still regulates spam rather than interface design. The gaps between these regimes are precisely where dominant platforms can exploit their market power, making competition law an essential safeguard.

VII. Global Antitrust Jurisprudence

The European Union built its Digital Markets Act on prior antitrust findings. Article 6(5), which prohibits self-preferencing, draws on the 2017 Google Shopping decision. Article 5(2), which does not allow the combining of data without consent, draws on the German Bundeskartellamt’s 2019 Facebook decision, upheld by the Court of Justice in 2023.¹³ The Digital Services Act names dark patterns expressly. In March 2024, the Commission opened non-compliance proceedings against Alphabet, Apple and Meta each centered on an interface-design choice being examined as a competition law obligation.¹⁴

The United States has used monopolization and unfair-competition theories. The Department of Justice’s 2024 suit against Apple treated the “green bubble” messaging design as one means of entrenching a smartphone monopoly. The Federal Trade Commission’s actions against Amazon, over an obstructive Prime cancellation flow, and against Publishers Clearing House were framed under Section 5 of the FTC Act, a statute housed in the same agency that enforces antitrust, giving it a single lens across both theories.¹⁵

Canada’s Competition Bureau fined the Dufresne Group CAD 3.25 million for false urgency in furniture marketing, treating it as price-related deception under its Competition Act. The United Kingdom’s Competition and Markets Authority investigated Emma Sleep over countdown-clock urgency.¹⁶

VIII. The Digital Competition Bill, 2024: An Ex-Ante Complement

The CCI can act ex-post, i.e. after the harm is caused. The Committee on Digital Competition Law concluded that this cannot keep pace with markets and proposed an ex-ante approach to regulate the largest platforms under the Draft Digital Competition Bill, 2024.¹⁷ However, the Bill has since stalled, with policymakers for now relying on the CCI’s ex-post enforcement and a market study.

IX. Toward a Coordinated Deterrence Model

The following steps would close the gap without any regulator ceding ground:

1. Recognize concurrent jurisdiction where dark patterns are adopted by dominant enterprises; and
2. Dark patterns by non-dominant firms continue to be handled by sectoral regulators & Consumer Fora.

X. Takeaway

The CCPA’s 2023 Guidelines correctly named the thirteen ways an interface can be turned against its user, but halting them is more important than naming alone. While the sector regulators can very well curb the “Dark Pattern” practices by stipulating a pre-condition for grant/ renewal of any license, simultaneously, the Competition Commission of India can continue to prohibit a dominant enterprise from continuing with “Dark Patterns” through strict enforcement of the Competition Act, 2002.

Footnotes

^{1 G.R. Bhatia is Senior Partner and Head of Competition law practice at Corporate Professionals Advisors and Advocates, New Delhi. He is former Additional Director General in the Competition Commission of India/ MRTP Commission, Government of India. His views are personal and he can be reached at gbhatia@indiacp.com. He was assisted by Shivansh Devgan, Intern at Corporate Professionals, in compilation of relevant case laws and supporting materials.}

^{2 Central Consumer Protection Authority, Guidelines for Prevention and Regulation of Dark Patterns, 2023 (Nov. 30, 2023), issued under § 18 of the Consumer Protection Act, 2019 (India), https://consumeraffairs.gov.in.}

^{3  IndiaLaw, CCPA Fines PhysicsWallah ₹5 Lakh for Dark Patterns (June 2026), https://www.indialaw.in.}

^{4 AZB & Partners, Regulatory Crackdown on Dark Patterns (Oct. 2025) (discussing corrective directions issued against IndiGo and BookMyShow), https://www.azbpartners.com.}

^{5 Competition Act, No. 12 of 2003, § 4 (India).}

^{6 Press Information Bureau, Ministry of Corporate Affairs, CCI Imposes Penalty of ₹1,337.76 Crore on Google for Anti-Competitive Practices in Android Mobile Device Ecosystem (Oct. 20, 2022), https://pib.gov.in.}

^{7 Press Information Bureau, Ministry of Corporate Affairs, CCI Imposes Penalty of ₹936.44 Crore on Google for Anti-Competitive Practices Relating to Play Store Billing System (Oct. 25, 2022), https://pib.gov.in.}

^{8  In re Updated Terms of Service and Privacy Policy for WhatsApp Users, Suo Motu Case No. 1 of 2021, Competition Commission of India (Nov. 18, 2024) (imposing a penalty of ₹213.14 crore under §§ 4(2)(a)(i) and 4(2)(e) of the Competition Act, 2002); see also G.R. Bhatia, Data Privacy Qua WhatsApp Policy of 2021, Corporate Professionals (Feb. 24, 2026), https://www.corporateprofessionals.com.}

^{9 Competition Act, No. 12 of 2003, §§ 60–62 (India); WhatsApp LLC v. Competition Commission of India, LPA No. 163 of 2021 (Del. H.C. Aug. 2022) (recognizing concurrent jurisdiction); see also Kirthi Srinivas & Ojaswi Bhagat, India’s WhatsApp Privacy Policy Saga: Competition Law and Data Protection, Kluwer Competition Law Blog (Aug. 19, 2025), https://competitionlawblog.kluwercompetitionlaw.com.}

^{10  G.R. Bhatia, Inter-Regulatory Consultation Between Competition and Sectoral Regulator (discussing Competition Commission of India v. Bharti Airtel Ltd., Civil Appeal No. 11843 of 2018, decided Dec. 5, 2018).}

^{11 Competition Act, No. 12 of 2003, § 21 & 21A (India).}

^{12 Competition (Amendment) Act, No. 18 of 2023 (India) (amending § 18 of the Competition Act, 2002 to empower the Competition Commission of India to enter into memoranda or arrangements with statutory authorities).}

^{13  Bruegel, Compliance Principles for the Digital Markets Act (discussing art. 6(5) concerning self-preferencing, drawing from the European Commission’s Google Shopping decision, and art. 5(2) concerning data combination, drawing from the Bundeskartellamt Facebook decision and Meta Platforms Inc. v. Bundeskartellamt, Case C-252/21, CJEU (2023)), https://www.bruegel.org.}

^{14 Winston & Strawn, Early Assessment of the Digital Markets Act (discussing the European Commission’s March 2024 non-compliance investigations concerning Alphabet, Apple and Meta), https://www.winston.com.}

^{15 Dhanya S. Krishnan & Ankur Singhal, Exposing Dark Patterns, Berkeley Technology Law Journal Blog (Apr. 19, 2024) (discussing United States v. Apple Inc., No. 2:24-cv-04055 (D.N.J. filed Mar. 21, 2024), and Federal Trade Commission enforcement actions against Amazon and Publishers Clearing House under § 5 of the FTC Act), https://btlj.org.}

^{16 Lirio Barros et al., The Rise of Dark Patterns: Does Competition Law Make It Any Brighter? 21(3) Competition L.J. 136 (2022) (discussing the Canadian Competition Bureau’s Dufresne Group settlement and the United Kingdom Competition and Markets Authority’s November 2022 Emma Sleep investigation).}

^{17  PRS Legislative Research, Digital Competition Law (summarizing the Report of the Committee on Digital Competition Law and the Draft Digital Competition Bill, 2024) (Mar. 12, 2024), https://prsindia.org.}

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