Keyword: Consumer law

Between Empowerment and Manipulation: The Ethics and Regulation of For-Profit Health Apps external link

Sax, M.
Wolters Kluwer, 2021, Series: Information Law Series, ISBN: 9789403537917

Abstract

Between Empowerment and Manipulation is an extensive ethical analysis with novel interpretations of European unfair commercial practices law on health apps and commercial digital choice environment. Health apps are incredibly compelling in their own right. Despite the promise of empowerment they offer, the tensions introduced by their data-driven, dynamically adjustable digital environments engender a potential for manipulation to which their designers and operators can easily succumb. In this important book, the author develops an ethical framework on how apps use their complete power over the design and operation of the digital environments to shape user-app relationships.

Consumer law, health apps, Kluwer Information Law Series, manipulation, unfair commercial practices

Bibtex

Book{Sax2021f, title = {Between Empowerment and Manipulation: The Ethics and Regulation of For-Profit Health Apps}, author = {Sax, M.}, url = {https://www.ivir.nl/sax_info_47-2/}, year = {2021}, date = {2021-09-30}, abstract = {Between Empowerment and Manipulation is an extensive ethical analysis with novel interpretations of European unfair commercial practices law on health apps and commercial digital choice environment. Health apps are incredibly compelling in their own right. Despite the promise of empowerment they offer, the tensions introduced by their data-driven, dynamically adjustable digital environments engender a potential for manipulation to which their designers and operators can easily succumb. In this important book, the author develops an ethical framework on how apps use their complete power over the design and operation of the digital environments to shape user-app relationships.}, keywords = {Consumer law, health apps, Kluwer Information Law Series, manipulation, unfair commercial practices}, }

Between Empowerment and Manipulation: The Ethics and Regulation of For-Profit Health Apps external link

Sax, M.
2021

Abstract

In the digital society, many of our everyday activities take place within digital choice architectures that become increasingly good at understanding and shaping our behavior. Health apps are a perfect example of this trend: they are easy to download and use and promise user empowerment. By collecting and analyzing user data, health apps promise to be able to ‘get to know’ their users and deliver personalized feedback and suggestions for better health outcomes. But this promise of user empowerment also comes with a risk of user manipulation. Most of the popular health apps are for-profit services. To monetize their userbase, they can rely on the very same user data collection, data analysis, and targeting techniques to shape the behavior of health app users in ways that benefit the health app provider, rather than the users themselves. As it turns out, the very conditions for empowerment largely overlap with the conditions for manipulation. This dissertation offers an ethical and legal analysis of the tension between empowerment and manipulation in for-profit health apps, and digital choice architectures more generally. Building on ethical theories of personal autonomy and manipulation, the dissertation develops an ethical framework to evaluate the design and commercial practices of health apps. This ethical framework is then used to develop novel interpretations of key concepts in the Unfair Commercial Practices Directive (UCPD). Based on these novel interpretations of key concepts, it is argued that the UCPD has an important role to play in addressing consumer manipulation.

autonomy, Consumer law, health apps, manipulation, nudging

Bibtex

PhD Thesis{Sax2021bb, title = {Between Empowerment and Manipulation: The Ethics and Regulation of For-Profit Health Apps}, author = {Sax, M.}, url = {https://dare.uva.nl/search?identifier=52225d37-e7e1-4883-9dab-a3f5d3a063d8}, year = {0326}, date = {2021-03-26}, abstract = {In the digital society, many of our everyday activities take place within digital choice architectures that become increasingly good at understanding and shaping our behavior. Health apps are a perfect example of this trend: they are easy to download and use and promise user empowerment. By collecting and analyzing user data, health apps promise to be able to ‘get to know’ their users and deliver personalized feedback and suggestions for better health outcomes. But this promise of user empowerment also comes with a risk of user manipulation. Most of the popular health apps are for-profit services. To monetize their userbase, they can rely on the very same user data collection, data analysis, and targeting techniques to shape the behavior of health app users in ways that benefit the health app provider, rather than the users themselves. As it turns out, the very conditions for empowerment largely overlap with the conditions for manipulation. This dissertation offers an ethical and legal analysis of the tension between empowerment and manipulation in for-profit health apps, and digital choice architectures more generally. Building on ethical theories of personal autonomy and manipulation, the dissertation develops an ethical framework to evaluate the design and commercial practices of health apps. This ethical framework is then used to develop novel interpretations of key concepts in the Unfair Commercial Practices Directive (UCPD). Based on these novel interpretations of key concepts, it is argued that the UCPD has an important role to play in addressing consumer manipulation.}, keywords = {autonomy, Consumer law, health apps, manipulation, nudging}, }

EU Consumer Protection 2.0: Structural Asymmetries in Digital Consumer Markets external link

Helberger, N., Lynskey, O., Micklitz, H.-W., Rott, P., Sax, M. & Strycharz, J.
2021

Consumer law, Data protection, manipulation, unfair commercial practices

Bibtex

Report{Helberger2021, title = {EU Consumer Protection 2.0: Structural Asymmetries in Digital Consumer Markets}, author = {Helberger, N. and Lynskey, O. and Micklitz, H.-W. and Rott, P. and Sax, M. and Strycharz, J.}, url = {https://www.beuc.eu/publications/beuc-x-2021-018_eu_consumer_protection.0_0.pdf}, year = {0305}, date = {2021-03-05}, keywords = {Consumer law, Data protection, manipulation, unfair commercial practices}, }

Getting under your skin(s): A legal-ethical exploration of Fortnite’s transformation into a content delivery platform and its manipulative potential external link

Sax, M. & Ausloos, J.
Interactive Entertainment Law Review, vol. 4, num: 1, 2021

Abstract

This paper investigates the ethical and legal implications of increasingly manipulative practices in the gaming industry by looking at one of the currently most popular and profitable video games in the world. Fortnite has morphed from an online game into a quasi-social network and an important cultural reference point in the lifeworld of many (young) people. The game is also emblematic of the freemium business model, with strong incentives to design the game in a manner which maximises microtransactions. This article suggests that to properly understand Fortnite’s practices – which we predict will become more widely adopted in the video game industry in the near future – we need an additional perspective. Fortnite is not only designed for hyper-engagement; its search for continued growth and sustained relevance is driving its transformation from being a mere video game into a content delivery platform. This means that third parties can offer non game-related services to players within Fortnite’s immersive game experience. In this paper, we draw on an ethical theory of manipulation (which defines manipulation as an ethically problematic influence on a person’s behaviour) to explore whether the gaming experience offered by Fortnite harbours manipulative potential. To legally address the manipulative potential of commercial video game practices such as the ones found in Fortnite, we turn to European data protection and consumer protection law. More specifically, we explore how the European Union’s General Data Protection Regulation and Unfair Commercial Practices Directive can provide regulators with tools to address Fortnite’s manipulative potential and to make Fortnite (more) forthright.

Consumer law, Data protection law, Fortnite, manipulation, Platforms, video games

Bibtex

Article{SaxAusloos2021, title = {Getting under your skin(s): A legal-ethical exploration of Fortnite’s transformation into a content delivery platform and its manipulative potential}, author = {Sax, M. and Ausloos, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3764489}, year = {0301}, date = {2021-03-01}, journal = {Interactive Entertainment Law Review}, volume = {4}, number = {1}, pages = {}, abstract = {This paper investigates the ethical and legal implications of increasingly manipulative practices in the gaming industry by looking at one of the currently most popular and profitable video games in the world. Fortnite has morphed from an online game into a quasi-social network and an important cultural reference point in the lifeworld of many (young) people. The game is also emblematic of the freemium business model, with strong incentives to design the game in a manner which maximises microtransactions. This article suggests that to properly understand Fortnite’s practices – which we predict will become more widely adopted in the video game industry in the near future – we need an additional perspective. Fortnite is not only designed for hyper-engagement; its search for continued growth and sustained relevance is driving its transformation from being a mere video game into a content delivery platform. This means that third parties can offer non game-related services to players within Fortnite’s immersive game experience. In this paper, we draw on an ethical theory of manipulation (which defines manipulation as an ethically problematic influence on a person’s behaviour) to explore whether the gaming experience offered by Fortnite harbours manipulative potential. To legally address the manipulative potential of commercial video game practices such as the ones found in Fortnite, we turn to European data protection and consumer protection law. More specifically, we explore how the European Union’s General Data Protection Regulation and Unfair Commercial Practices Directive can provide regulators with tools to address Fortnite’s manipulative potential and to make Fortnite (more) forthright.}, keywords = {Consumer law, Data protection law, Fortnite, manipulation, Platforms, video games}, }

Kaleidoscopic data-related enforcement in the digital age external link

Yakovleva, S., Geursen, W. & Arnbak, A.
Common Market Law Review, vol. 57, num: 5, pp: 1461-1494, 2020

Abstract

The interplay between competition, consumer and data protection law, when applied to data collection and processing practices, may lead to situations where several competent authorities can, independently, carry out enforcement actions against the same practice, or where an authority competent to carry out enforcement in one area of law can borrow the concepts of another area to advance its own goals. The authors call this “kaleidoscopic enforcement”. Kaleidoscopic enforcement may undermine existing coordination mechanisms within specif ic areas, and may lead to both the incoherent enforcement of EU rules applicable to data, and to sub-optimal enforcement. An EU level binding inter-disciplinary coordination mechanism between competition, consumer and data protection authorities is needed. Now the Commission has announced ambitious plans to enhance the coherent application of EU law in several areas, it is the perfect time to work towards creating such an enforcement mechanism.

Competition law, Consumer law, Data protection law, enforcement, frontpage, Privacy

Bibtex

Article{Yakovleva2020c, title = {Kaleidoscopic data-related enforcement in the digital age}, author = {Yakovleva, S. and Geursen, W. and Arnbak, A.}, url = {https://www.ivir.nl/publicaties/download/CMLR_2020.pdf}, year = {1001}, date = {2020-10-01}, journal = {Common Market Law Review}, volume = {57}, number = {5}, pages = {1461-1494}, abstract = {The interplay between competition, consumer and data protection law, when applied to data collection and processing practices, may lead to situations where several competent authorities can, independently, carry out enforcement actions against the same practice, or where an authority competent to carry out enforcement in one area of law can borrow the concepts of another area to advance its own goals. The authors call this “kaleidoscopic enforcement”. Kaleidoscopic enforcement may undermine existing coordination mechanisms within specif ic areas, and may lead to both the incoherent enforcement of EU rules applicable to data, and to sub-optimal enforcement. An EU level binding inter-disciplinary coordination mechanism between competition, consumer and data protection authorities is needed. Now the Commission has announced ambitious plans to enhance the coherent application of EU law in several areas, it is the perfect time to work towards creating such an enforcement mechanism.}, keywords = {Competition law, Consumer law, Data protection law, enforcement, frontpage, Privacy}, }

The perfect match? A closer look at the relationship between EU consumer law and data protection law external link

Helberger, N., Zuiderveen Borgesius, F. & Reyna, A.
Common Market Law Review, vol. 2017, num: 5, pp: 1427-1466, 2017

Abstract

In modern markets, many companies offer so-called “free” services and monetize consumer data they collect through those services. This paper argues that consumer law and data protection law can usefully complement each other. Data protection law can also inform the interpretation of consumer law. Using consumer rights, consumers should be able to challenge excessive collection of their personal data. Consumer organizations have used consumer law to tackle data protection infringements. The interplay of data protection law and consumer protection law provides exciting opportunities for a more integrated vision on “data consumer law”.

Consumentenrecht, Consumer law, Data protection law, EU, frontpage, gegevensbescherming, Privacy

Bibtex

Article{Helberger2017b, title = {The perfect match? A closer look at the relationship between EU consumer law and data protection law}, author = {Helberger, N. and Zuiderveen Borgesius, F. and Reyna, A.}, url = {https://www.ivir.nl/publicaties/download/CMLR_2017_5.pdf}, year = {1006}, date = {2017-10-06}, journal = {Common Market Law Review}, volume = {2017}, number = {5}, pages = {1427-1466}, abstract = {In modern markets, many companies offer so-called “free” services and monetize consumer data they collect through those services. This paper argues that consumer law and data protection law can usefully complement each other. Data protection law can also inform the interpretation of consumer law. Using consumer rights, consumers should be able to challenge excessive collection of their personal data. Consumer organizations have used consumer law to tackle data protection infringements. The interplay of data protection law and consumer protection law provides exciting opportunities for a more integrated vision on “data consumer law”.}, keywords = {Consumentenrecht, Consumer law, Data protection law, EU, frontpage, gegevensbescherming, Privacy}, }

Individual Licensing Models and Consumer Protection external link

Guibault, L.
2016

Abstract

Copyright law is not primarily directed at consumers. Their interests are therefore only marginally accounted for, as the copyright rules exempt specific uses of works from the right holder’s control. This chapter examines the impact of digital technology on the position of consumers of licensed copyrighted content. While ownership of the physical embodiment of a work does not entail the ownership of the rights in the work, how does copyright law deal with ‘disembodied’ works? Whereas digital content is now commonly distributed on the basis of individual licensing schemes, what does it mean for consumers? Do they have a claim under consumer protection law against copyright owners for the impossibility to make a copy for private purposes, the lack of interoperability between devices, and the geo-blocking of their account?

Auteursrecht, Consumer law, consumer protection, Copyright, digital content, geo-blocking, Intellectuele eigendom, interoperability, private copying

Bibtex

Other{nokey, title = {Individual Licensing Models and Consumer Protection}, author = {Guibault, L.}, url = {http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2713765}, year = {2016}, date = {2016-02-05}, abstract = {Copyright law is not primarily directed at consumers. Their interests are therefore only marginally accounted for, as the copyright rules exempt specific uses of works from the right holder’s control. This chapter examines the impact of digital technology on the position of consumers of licensed copyrighted content. While ownership of the physical embodiment of a work does not entail the ownership of the rights in the work, how does copyright law deal with ‘disembodied’ works? Whereas digital content is now commonly distributed on the basis of individual licensing schemes, what does it mean for consumers? Do they have a claim under consumer protection law against copyright owners for the impossibility to make a copy for private purposes, the lack of interoperability between devices, and the geo-blocking of their account?}, keywords = {Auteursrecht, Consumer law, consumer protection, Copyright, digital content, geo-blocking, Intellectuele eigendom, interoperability, private copying}, }

Online Price Discrimination and Data Protection Law external link

Zuiderveen Borgesius, F.
2015

Abstract

Online shops can offer each website customer a different price – a practice called first degree price discrimination, or personalised pricing. An online shop can recognise a customer, for instance through a cookie, and categorise the customer as a rich or a poor person. The shop could, for instance, charge rich people higher prices. From an economic perspective, there are good arguments in favour of price discrimination. But many regard price discrimination as unfair or manipulative. This paper examines whether European data protection law applies to personalised pricing. Data protection law applies if personal data are processed. This paper argues that personalised pricing generally entails the processing of personal data. Therefore, data protection law generally applies to personalised pricing. That conclusion has several implications. For instance, data protection law requires a company to inform people about the purpose of processing their personal data. A company must inform customers if it personalises prices.

Consumer law, cookies, Data protection law, discrimination, Grondrechten, Personal data, personalised prices, Price discrimination, Privacy, tracking

Bibtex

Article{nokey, title = {Online Price Discrimination and Data Protection Law}, author = {Zuiderveen Borgesius, F.}, url = {http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652665}, year = {0901}, date = {2015-09-01}, abstract = {Online shops can offer each website customer a different price – a practice called first degree price discrimination, or personalised pricing. An online shop can recognise a customer, for instance through a cookie, and categorise the customer as a rich or a poor person. The shop could, for instance, charge rich people higher prices. From an economic perspective, there are good arguments in favour of price discrimination. But many regard price discrimination as unfair or manipulative. This paper examines whether European data protection law applies to personalised pricing. Data protection law applies if personal data are processed. This paper argues that personalised pricing generally entails the processing of personal data. Therefore, data protection law generally applies to personalised pricing. That conclusion has several implications. For instance, data protection law requires a company to inform people about the purpose of processing their personal data. A company must inform customers if it personalises prices.}, keywords = {Consumer law, cookies, Data protection law, discrimination, Grondrechten, Personal data, personalised prices, Price discrimination, Privacy, tracking}, }

Your Digital Home is No Longer Your Castle: How Cloud Computing Transforms the (Legal) Relationship between Individuals and Their Personal Records external link

Irion, K.
International Journal of Law and Information Technology, vol. 23, num: 4, pp: 348-371., 2015

Abstract

In line with the overall trend individuals’ personal affairs, too, are composed of digital records to an increasing amount. At about the same time, the era of local storage in end user equipment is about to give way to remote computing where data resides on third party equipment (cloud computing). Once information, and even the most personal one, is no longer stored on personal equipment the relationship between individual users and their digital assets belonging to them is becoming increasingly abstract. This contribution focuses on the implications of cloud computing for individuals’ unpublicized digital records. The question to be answered is whether - taken together - the progressing virtualization and the disruption of physical control produce a backslide for individual positions of rights. The paper introduces the legal treatment of users’ digital personal records and how a technical transformation in combination with disparate legal protection and prevailing commercial practices are bound to impact the distribution of rights and obligations.

cloud computing, Consumer law, control, EU law, Grondrechten, Privacy, security

Bibtex

Article{nokey, title = {Your Digital Home is No Longer Your Castle: How Cloud Computing Transforms the (Legal) Relationship between Individuals and Their Personal Records}, author = {Irion, K.}, url = {http://www.ivir.nl/publicaties/download/1584.pdf}, doi = {https://doi.org/10.1093/ijlit/eav015}, year = {0929}, date = {2015-09-29}, journal = {International Journal of Law and Information Technology}, volume = {23}, number = {4}, pages = {348-371.}, abstract = {In line with the overall trend individuals’ personal affairs, too, are composed of digital records to an increasing amount. At about the same time, the era of local storage in end user equipment is about to give way to remote computing where data resides on third party equipment (cloud computing). Once information, and even the most personal one, is no longer stored on personal equipment the relationship between individual users and their digital assets belonging to them is becoming increasingly abstract. This contribution focuses on the implications of cloud computing for individuals’ unpublicized digital records. The question to be answered is whether - taken together - the progressing virtualization and the disruption of physical control produce a backslide for individual positions of rights. The paper introduces the legal treatment of users’ digital personal records and how a technical transformation in combination with disparate legal protection and prevailing commercial practices are bound to impact the distribution of rights and obligations.}, keywords = {cloud computing, Consumer law, control, EU law, Grondrechten, Privacy, security}, }