Suchergebnisse

Award date: 25 January 2018 ; Supervisor: Prof. Hans-W. Micklitz ; The thesis investigates the evolution of the status-related approach to consumer protection in the private law of the European Union and asks whether this traditional approach is still viable in the times of growing digitalisation. It explores, firstly, what consumer protection actually means and, secondly, whether instruments adopted for this purpose are also directed at the achievement of other policy goals. It shows that, in the most general understanding, consumer protection is linked to the position of "passive market participants", namely persons entering into legal relationships to satisfy their needs without producing the product or service themselves. It is usually, but not invariably, limited to the standard consumer notion, displays several overarching themes such as access, information, fairness and alternative dispute resolution and remains strongly intertwined with the internal market project. The thesis further asks whether, throughout the years, tensions associated with the status-related approach to consumer protection were identified and, if so, whether and how they were addressed. It touches upon the changing normative content of the term itself and points to several areas – most notably related to the provision of services – in which the notion of a "consumer" has partially been replaced (or supplemented) with other categories. It finally asks whether digitalisation is setting an end to the status-related consumer protection and attempts to draw the possible ways forward.

Abstract
Transparency remains a contested concept in European Union (EU) law and policy. All the main instruments of EU consumer and data protection law require that consumers be given access to and understand certain information about their relationships with traders. Improved transparency is also proposed as a response to a variety of problems associated with digital markets, including those experienced by consumers and data subjects. At the same time, transparency is increasingly challenged as ineffective and potentially even counterproductive from doctrinal and critical scholarship alike. First, transparency is seen as inherently unable to transform the economic reality on the ground and to address the power imbalances between consumers and traders. Secondly, it is argued that acts of representation involved in transparency suffer from complexity and are prone to exploitation by the actors who engage in it. This, in turn, casts doubt on the ability of transparency to steer the behaviour of businesses and transform markets to the benefit of consumers and society. This article builds upon prior critiques of transparency and connects them with a doctrinal analysis of EU consumer and data protection law and in particular the Unfair Contract Terms Directive, the Unfair Commercial Practices Directive, and the General Data Protection Regulation. Seven different notions of transparency are identified: (i) Transparency as access to the medium over time; (ii) Transparency as presentation of information that facilitates understanding; (iii) Transparency as formulations that facilitate understanding; (iv) Transparency as non-ambiguity and logical intelligibility; (v) Transparency as the absence of deception and confusion; (vi) Transparency as completeness and specificity; and (vii) Transparency as non-arbitrariness. The article submits that the acts of representation involved in transparency are already recognized in the three legal regimes and attempts are made to leverage the mediated nature of transparency to consumers' advantage. Crucially, existing efforts to regulate mediation and improve its quality can, nowadays, be reinforced with the help of algorithmic systems geared toward supporting consumers. Moreover, some of the deployments of transparency identified—most notably transparency as non-arbitrariness—push its outer conceptual boundaries in ways that bring transparency very close to fairness. The article ultimately questions a vision of transparency as a necessarily softer-touch protective frame, which cannot alter business conduct. The conceptual richness of transparency offers opportunities for its deployment in more disruptive ways.

Business is using artificial intelligence in essentially all sectors of the economy: machine learning is employed to generate knowledge out of big (consumer) data, to optimize processes and to undertake new, previously impossible tasks. This might come with benefits for the consumers and the society, but definitely poses numerous challenges. In this short note, we provide an overview of challenges for EU consumer law and policy stemming from the business's use of AI, and sketch a plan for action. We argue that AI will need to be tackled case-by-case, bottom-up, though with the big picture in mind. It needs to be tackled soon, but we do need to take our time to reconsider the assumptions that have been challenged, and not rush to political conclusions. Moreover, we argue that the role of law is not just to minimize the risks, but also to enable developments in consumer-empowering AI tools. These tools, however, will not be given to us by business. Civil society must take action and fight for them. We cluster the challenges and takeaways by the type of actors that are affected by the business's use of AI. Consumers face the risk of undue influence on their behavior (by targeted personalized commercial practices), exclusion from access to goods and services (ad delivery & price discrimination) and lower quality of information and services in the interaction with artificial agents. Regulators need to revise their governance toolbox, taking into account the specificity of AI's operations (stealth infringement, wide-spread-by-minor damage, automation of reasoning). Also, regulation needs to strike a correct balance between specific cases and the bigger picture, and between commanding and enabling. In EU consumer law, the concepts of unfair commercial practices and unfair contractual terms should be revisited, to take into account the reality of business using AI. In addition, we should consider the usefulness of adopting special data protection rules to supplement the GDPR, by stating what purposes of data processing are lawful in what markets. Civil society should strive to seize the opportunities of AI in the medium-term, making the best use of the exiting legal instruments (UCPD, UCTD, GDPR) in the short-term, and lobby for societal and legal change in the long-term. Finally, academia, in particular legal scholars, must re-consider their role in the debate on AI governance: they should ground their research in empirical findings, acknowledge the limitations of sectoral knowledge and remedy such limitations by engaging in an interdisciplinary and multi-stakeholder dialogue. We argue that the competitive advantage of scholars goes beyond offering concrete policy recommendations. Instead, it concerns a critical reflection on the ways in which the mass deployment of AI challenges the basic assumptions and presuppositions of the existing legal and regulatory theory and practice.

Potential regulation of use of artificial intelligence by business should minimize the risks for consumers and the society without impeding the possible benefits. To do so, we argue, the legal reaction should be grounded in an empirical analysis and proceed case-by-case, bottom-up, as a series of responses to concrete research questions. The ambition of this report has been to commence and facilitate that process. We extensively document and evaluate the market practice of the corporate use of AI, map the scholarly debates about (consumer) law and artificial intelligence, and present a list of twenty five research questions which, in our opinion, require attention of regulators and academia. The report is divided into four sections. The first explains our understanding of the concepts of "artificial intelligence" (a set of socio-technological practices enabled by machine learning and big data) and "consumer law" (various legal instruments concretizing the principles of the weaker party protection, non-discrimination, regulated autonomy and consumer privacy). The second section documents the ways in which the business uses artificial intelligence in seven sectors of the economy: finance and insurance, information services, energy and "smart solutions", retail, autonomous vehicles, healthcare and legal services. For each analyzed sector we study the gains for the businesses stemming from the deployment of AI, the potential gains, but also challenges for consumers, as well as third party effects. In the third section, we repeat the analysis through the lens of four general "uses" of AI by businesses in various sectors: knowledge generation, automated decision making, advertising and other commercial practices and personal digital assistants. Finally, in the fourth section, we present the questions which we believe should be addressed in the next stage of the research. We cluster them into: normative questions about regulatory goals, technological and governance questions about regulatory means, and theoretical questions about concepts and preconceptions.