ABSTRACT
Contract law presumes free choice, where only undue influence as intimidation, and information asymmetry are regulated. Influences by marketing (presentation, sales skills) are allowed, as long as they do not turn into abusive commercial practices. With the advent of digital contracting and AI, we find that the User experience (UX) is deliberately designed to influence choices (dark patterns in general, personalization in particular). There is hardly any theoretical discussion on why those influences are allowed and where the boundaries lie.
The question is therefore to what extent influence of choice is allowed, and more particular whether UX and AI influence of choice is allowed. This requires an investigation of the underlying assumptions and justifications of existing rules of contract law. AI is important as it straddles the boundary between the delegation of tasks to an auxiliary (presumed human), and the use of mere technical means by the principal, therefore requires also a way to handle this duality of AI, which the notion of diligence in the UCP Directive may provide. It is submitted that the structural character of influences may require stronger regulation, while traditional sales techniques do not.
Tjong Tjin Tai, Eric, Contract Law and Persuasive Design: Dark Patterns, AI and the Concept of Free Choice (February 1, 2023).
Leave a Reply