‘Who is the average consumer? CJEU in Compass Banca (C-646/22)’

20 November 2024 | Author: steve

On the 14th of November, the CJEU published its long-awaited decision on Compass Banca (Case C-646/22; we have previously discussed it here). In this case, the CJEU, for the first time, elaborated on who the ‘average consumer’ is, especially in light of the persistent critiques from behaviouralists, and further clarified the assessment of and the consequences for unfair commercial practices under the UCPD (Directive 2005/29/EC). The case involves a commercial practice by the Italian company Compass Banca which the Court termed ‘framing’ – a term typically associated with a specific type of cognitive bias rather than a concrete commercial practice … (more)

[Jie Ouyang, Recent developments in European Consumer Law, 19 November 2024]

Posted in Consumer Law, Contract, Unconscionability and Unfair Terms | Leave a Comment

‘Extracting Informed Consent’

20 November 2024 | Author: steve

Winterbotham v Shahrak [2024] EWHC 2633 (KB): Background. In Winterbotham, the Claimant had suffered a partially erupted wisdom tooth for many years, which had caused several episodes of pericoronitis (inflammation of the surrounding gum tissue) with associated pain and discomfort. Because of the lengthy wait for NHS treatment, the Claimant sought private treatment and was referred to the Defendant’s practice. The Defendant extracted the tooth, and the procedure was performed with reasonable care and skill … (more)

[Matthew Leitch, 1 Crown Office Row, 18 November 2024]

Posted in Negligence, Personal Injuries, Tort | Leave a Comment

‘LIBOR Cessation, Implied Terms and Alternative Reference Rate: English High Courts Decides’

20 November 2024 | Author: steve

LIBOR cessation is one of the most important issues in commercial law in the recent times. With trillions of dollars with contracts indexed to LIBOR and its recent cessation, it is important that courts world over deal with it in a fair manner. This article may be looked at for how international arbitral tribunals have dealt with LIBOR cessation … (more)

[Badrinath Srinivasan, Practical Academic, 19 November 2024]

Posted in Contract | Leave a Comment

Mondal and Ganguli, ‘Deceitful Trade Names in the Era of Social Media: An Exploration of Influencer Marketing and Consumer Deception’

20 November 2024 | Author: steve

ABSTRACT
‘An Exploration of Influencer Marketing and Consumer Deception’ delves into the evolving landscape of influencer marketing, where the power of social media has enabled influencers to play a significant role in consumer behaviour. The piece explores how influencers, often trusted for their authenticity and relatability, can sometimes engage in misleading practices by endorsing products or services under deceitful trade names.

Mondal, Joysri and Ganguli, Prithwish, Deceitful Trade Names in the Era of Social Media: An Exploration of Influencer Marketing and Consumer Deception (July 1, 2024), Indian Journal of Law and Legal Research, volume VI issue IV, 2024.

Posted in Consumer Law, Intellectual Property | Leave a Comment

Higgins and Yap, ‘Class Actions in Context: Distinguishing Regulation, Tort, and Procedure’

20 November 2024 | Author: steve

ABSTRACT
The description of the use of class actions in mass torts litigation as ‘an evolutionary form of “privatised regulation”’ is not normatively inert. It has the potential to shape the way we understand, justify, and evaluate mass torts class actions, with practical implications for their development. Unfortunately, the description is inaccurate and distorting. Class actions cannot be understood as a form of regulation. Neither substantive tort law nor its enforcement can be understood in terms of regulation without serious distortion. Use of the class action procedure does not change this. Rather, class actions fall to be evaluated against procedural norms of the civil justice system. In this regard, the use of some sort of class action procedure should be encouraged. However, the successful design and management of class actions raises different questions, to which regulatory considerations are neither here nor there – and rightly so.

Higgins, Andrew and Yap, John, Class Actions in Context: Distinguishing Regulation, Tort, and Procedure (June 1, 2024).

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Alex Waghorn, ‘What’s the Point of Proprietary Estoppel?’

20 November 2024 | Author: steve

ABSTRACT
This short note looks at three criticisms that might be made of Guest v Guest [2022] UKSC 27. It does so by reference to cases decided in the 2 years since Guest was decided.

Waghorn, Alex, What’s the Point of Proprietary Estoppel? (October 3, 2024). A version of this paper will appear in The Supreme Court at 15, edited by Jenny Russell and Lewis Graham.

Posted in Contract, Equity and Trusts, Property, Remedies and Procedure | Leave a Comment

Mona Naomi Lintvedt, ‘Under the Robot’s Gaze’

20 November 2024 | Author: steve

ABSTRACT
This article delves into the power dynamics at play in human-robot interactions, using gaze theory and panopticism to argue that social robots exert a form of disciplinary power over humans. It challenges the notion of gaze as merely visual by highlighting the sensory and psychological dimensions of omnipresent surveillance that robots are capable of. Social robots, with their advanced sensory capabilities, can exert a form of disciplinary power over humans, leading to a power imbalance in the robot-human relationship. The EU’s regulatory approach to robotics is insufficient, focusing too narrowly on specific functionalities and not addressing the broader impacts of robots’ interactive presence in human environments. The author calls for a more comprehensive regulatory framework that recognises and addresses the complex power relationships inherent in our interactions with robots.

Lintvedt, Mona Naomi, Under the Robot’s Gaze (November 19, 2024), University of Oslo Faculty of Law Research Paper No 2024-12.

Posted in Defamation and Privacy, European Private Law, General | Leave a Comment

Myles Pulsford, ‘The Federal Court’s Defamation Jurisdiction: Revisiting Crosby v Kelly (2012) 203 FCR 451′

20 November 2024 | Author: steve

ABSTRACT
The interpretation adopted by the Full Federal Court of Australia in Crosby v Kelly (2012) 203 FCR 451 of s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as a law of the Commonwealth for the purposes of s 76(ii) of the Constitution, and as a source of federal jurisdiction, has had significant consequences for the Australian Judicature, including, most notably, the Federal Court’s jurisdiction to hear and determine defamation proceedings where there is alleged to be publication in the Australian Capital Territory. This article considers and tests the conceptual underpinnings of the Full Court’s reasoning in Crosby v Kelly. While there can be no doubt that the Commonwealth Parliament has the legislative power to confer jurisdiction on the Federal Court to hear and determine matters concerning defamatory publications in the territories, this article argues that there is considerable doubt that, as a matter of statutory construction, that power was exercised by the Commonwealth in the enactment of s 9(3) and that, if the Federal Court’s jurisdiction cannot be sustained under s 9(3), there would not appear to be a clear and established basis for the Federal Court to hear and determine defamation proceedings.

Pulsford, Myles, The Federal Court’s Defamation Jurisdiction: Revisiting Crosby v Kelly (2012) 203 FCR 451 (November 6, 2024), (2025) Australian Law Journal (forthcoming).

Posted in Defamation and Privacy, Remedies and Procedure | Leave a Comment

Celeste Shen, ‘Fair Use, Licensing, and Authors’ Rights in the Age of Generative AI’

19 November 2024 | Author: steve

ABSTRACT
The rise of generative AI technologies has introduced unprecedented challenges to copyright law, particularly around the fair use of copyrighted works in AI training processes. Generative AI tools, such as ChatGPT, are trained on vast datasets that often include copyrighted material, typically without the consent of authors or compensation for use. This widespread, unauthorized use has led to legal disputes, with plaintiffs asserting that using protected texts in training AI models constitutes copyright infringement. This Note examines the application of the fair use doctrine to generative AI, analyzing each of the four statutory factors to demonstrate that generative AI’s commercial replication of copyrighted content is not transformative, harms the market for original works, and should not qualify as fair use.

To address these issues, this Note proposes a blanket licensing scheme as a policy solution to balance the interests of copyright holders and AI companies. Such a scheme would ensure compensation for authors while legally permitting AI companies to access necessary training data, and therefore foster a sustainable partnership between creators and the AI industry.

Celeste Shen, Fair Use, Licensing, and Authors’ Rights in the Age of Generative AI, 22 Northwestern Journal of Technology and Intellectual Property 157 (2024).

Posted in Intellectual Property | Leave a Comment

Avery, Abril and del Riego, ‘Attributing AI Authorship: Towards a System of Icons for Legal and Ethical Disclosure’

19 November 2024 | Author: steve

ABSTRACT
Over the past year, the pervasive role of large language models (LLMs) and artificial intelligence (AI) in text generation has precipitated concerns about ethical usage, authorship, and transparent attribution. This has been true in legal practice, academia, and the corporate world, as well as in countless other arenas. In this Article, we identify the gap that has opened between those demanding proper disclosure (we should know when and to what extent AI is an author) and those struggling to respond to these demands. Part of the problem is that there is no system in place, no lingua franca, no set of norms for such disclosure. In the early aughts, a similar gap threatened copyright law, and legal scholars forged a solution in the Creative Commons. Now, with a similar form but distinct substance and function, we introduce the AIA (Artificial Intelligence Attribution), a system that properly and seamlessly attributes AI text authorship. The system involves the use of badges that delineate the nature of AI involvement – from research to writing to editing. In addition to filling the fundamental gap identified above, the benefits of the AIA vis-à-vis generative AI are at least threefold: (i) minimizing legal risk attendant to AI’s use (ie, legal exposure stemming from contracts, consumer protection, and intellectual property); (ii) managing public perception of AI use; and (iii) facilitating ethical behavior. We discuss these benefits from both theoretical and empirical lenses. By ‘empirical,’ we are referring to original experimental research that we conducted to vet the AIA. Our findings suggested that use of the AIA, which enhanced attribution of AI authorship, may improve public perception and reduce legal risk. After discussing these benefits, we present three examples as to how AIA badges would look in practice. First, we explore the AIA in the law, a sector in which unacknowledged use of generative AI has already caused consternation and legal action. Then, we explore the AIA in academic (scholarship) and corporate (institutional speech) settings. These real-life applications enable us to illustrate the merits and potential challenges of adoption. In the ever- changing realm of human-AI cooperation, this Article establishes a framework for synergistic collaboration and integration. The AIA promises much-needed transparency, authenticity, and accountability in joint human-AI authored works while allowing for and promoting continued technical innovation.

Joseph J Avery, Patricia Sánchez Abril, and Alissa del Riego, Attributing AI Authorship: Towards a System of Icons for Legal and Ethical Disclosure, 22 Northwestern Journal of Technology and Intellectual Property 1 (2024).

Posted in Intellectual Property | Leave a Comment