Fiduciary requirements for virtual assistants

Abstract

Virtual assistants (VAs), like Amazon’s Alexa, Google’s Assistant, and Apple’s Siri, are on the rise. However, despite allegedly being ‘assistants’ to users, they ultimately help firms to maximise profits. With more and more tasks and leeway bestowed upon VAs, the severity as well as the extent of conflicts of interest between firms and users increase. This article builds on the common law field of fiduciary law to argue why and how regulators should address this phenomenon. First, the functions of VAs resemble established fiduciaries, namely mandataries when they perform tasks on behalf of users, and increasingly advisors whenever they provide recommendations or suggestions. Second, users grant firms deploying VAs ever more discretion over their economic, and more and more significant non-economic interests, such as their health or finances. This delegation of power renders users vulnerable to abuse of power and inadequate performance by firms deploying VAs. Moreover, neither specification or monitoring nor market forces are alternatives that can sufficiently protect users. Thus, regulation is needed, departing from the recognition of the relationship between firms deploying VAs and users as a fiduciary relationship. In the EU, this could be realised through fiduciary requirements for VAs. First and foremost, to adequately protect users from abuse of power by firms deploying VAs, the core fiduciary duty of loyalty should be converted into corresponding fiduciary requirements for VAs, obliging firms to align VAs with their users.