Algorithmic business and EU law on fair trading

Federico Galli
2021
This thesis studies how commercial practice is developing with artificial intelligence technologies and discusses some normative concepts of EU law on fair trading. The author argues that the mainstream normative debate concerning artificial intelligence has underestimated the importance of understanding the socio-technical context behind its adoption, and therefore aims at amending this gap by studying artificial intelligence in the context of business-consumer marketing relationships. The
more » ... orithmic business" phenomenon refers to the increased deployment of artificial intelligence tools in marketing organisations which -based on large quantities of consumer dataallow companies to optimise a number of tasks related to consumer relationships. The phenomenon is orienting relations with consumers towards some general observable trends that are critically affecting the power relations between business and consumers. These developments do not take place in a legal vacuum but in the background of a system of norms and rules aimed at maintaining fairness and balance in market transactions. Thus, the author assesses current developments in business practice in the context of EU consumer law specifically aimed at regulating business practice. The analysis is critical by design and without neglecting concrete practices attempts to look at the general picture. The thesis consists of nine chapters divided in three thematic parts. The first part discusses the integration of artificial intelligence technologies in marketing organisations, a brief history, the technical foundations, and their modes of integration in business organisations. In the second part, a selected number of socio-technological developments in commercial practice are analysed and the main implications from the perspective of consumers discussed. In particular, the following are addressed: the monitoring and analysis of consumer behaviour based on data; the personalisation of offers and customer experience; the capture of information on consumers' psychology and emotions, the mediation through algorithmic assistants. The third part assesses these socio-technical transformations in the context of EU fair trading law and of the broader policy debate concerning consumer protection in the algorithmic society. In particular, two normative concepts underlying the EU fairness standard are critically analysed: manipulation, as a substantive regulatory concept that limits commercial behaviours in order to protect consumers' informed and free choices and vulnerability, as a concept of social policy that portrays people who are more exposed to marketing practices. ix CIRSFID-AI. I started on the 1st of November 2017 in what was then the Interdisciplinary Centre for Philosophy of Law and Legal informatics, and the journey to my PhD defence was only made possible by the opportunities opened up to me by this academic circle. Any acknowledgement of the support I have received has to start with thanking my supervisor Prof. Giovanni Sartor. From the start of my PhD, he has been always available to discussing my research and give me his keen and sharp thought on every possible issue. Over the course of the three years, he has been a treasured guide, opening for me new research fields and supporting me with many opportunities. I very much hope that he can continue to be my mentor in the future. A special thanks also to Prof. Monica Palmirani, coordinator of the Law, Science and Technology program, whose initial encouragement and constant support has allowed me to conclude this journey. The research experience at the University of Luxembourg has allowed me to meet and engage with several brilliant researchers who have warmly welcomed me as a peer. In particular, I thank my local PhD supervisor Prof. Dr. Christoph Schommer for listening to my PhD speculations and for having guided me through a better understanding of artificial intelligence. During the three years as a PhD student, I have hugely benefited from the wisdom of the members of my supervisory committee, Prof. Giovanni de Cristofaro and Prof. Dr. Hans W. Micklitz. I thank them for their time and feedback and for pushing my substantive understanding and questioning my underlying assumptions on consumers protection law. I also thank the last final member of the jury, Prof. Dino Pedreschi, for coming on board at the end and kindly accepting to read the thesis. I am grateful to Prof. Leon van der Torre, Prof. Massimo Durante, Prof. Guido Boella and all the other members of the Last-JD Doctoral Board for their precious feedback during the three years. I thank Prof. Mark D. Cole and Prof. Alexander Steen for being part of my CET at University of Luxembourg and giving precious feedback and criticism to my research. A thankful thought also to Prof. Martin Ebers and Dr. Marta Cantero Gamito, who edited the book where I had the honour to publish my very first book chapter. The thesis also benefited greatly from the suggestions of colleagues and friends Dr.
doi:10.48676/unibo/amsdottorato/9750 fatcat:rb4rikb24vgbpj3v6ps24b7ugq