Abstract
The authors argue that it is possible to partly automate the process of abstract control of fairness of clauses in online consumer contracts. The authors present a theoretical and empirical argument for this claim, including a brief presentation of the software they have designed. This type of automation would not replace human lawyers but would assist them and make their work more effective and efficient. Policy makers should direct their attention to the potential of using algorithmic techniques in enforcing the law regarding unfair contractual terms, and to facilitating research on and ultimately implementing such technologies.
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Notes
In the meaning of the Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts, further referred to as “UCTD” or “the Directive.”
These contracts occur under different names: “terms of service,” “terms and conditions,” “service agreements,” “statements,” or simply “terms.” The user either needs to explicitly state that he or she agrees with them, while creating an account or such a document would contain a clause stating that by using the service, the user accepts and agrees with the document’s content. For the sake of clarity, the expressions “terms of service” or “terms of online services” are used throughout this paper.
This is possible in the case of the so-called black list clauses, which exist in some jurisdictions.
The reader is invited to download the software from http://uterms.software. Gradually, the website will also be filled with the annexes of this article, including the tables with a comparison of different terms of online services, and the complete dictionary that the software uses.
A full table containing a comparison of unfair terms in different online platforms will soon be available on the project’s website: http://uterms.software.
European Commission Press release: The European Commission and Member States consumer authorities ask social media companies to comply with EU consumer rules. Brussels, 17 March 2017. Available at: http://europa.eu/rapid/press-release_IP-17-631_en.htm?locale=en.
“Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.”
What goes without saying is that such a usage would need to occur within the limits and boundaries of the law. We do not, by any means, advocate for an Orwellian future where the state uses information technologies to control the behaviour of individuals. Actually, as the recent NSA scandal has revealed, such an image might not even be the future, but to a certain extent already exists. However, just as much as the public is rightly concerned with the massive preventive surveillance of individuals, not much opposition has been voiced against automated consumer law enforcement, in the interest of individuals, and against business. This may be because it would be the right step to take or perhaps, because it has not yet taken place or perhaps most likely for both reasons.
Since the aim of the research is to bridge the gap between legal scholarship and engineering, the lawyerly audience is kindly asked to excuse the authors for being quite basic in this part. The aim of the article is not to offer an in-depth analysis of unfair terms law but to offer an in-depth analysis of how the enforcement of this law could be assisted by technology. Hence, the target audience of “Unfair Contractual Terms Law” is not lawyers but engineers. The latter is asked to excuse the authors in being rather basic in their explanation of the different technological options to lawyers, in “Automation of Annotation in Theory: Challenges and Solutions.”
A Digital Single Market Strategy for Europe, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Brussels, 6.5.2015, COM (2015) 192 final.
“What is an online platform?” is a question yet to be answered, both in terms of what kind of entities one wants to treat as platforms, and what the legal status of those entities would be. As interesting as the debate is, it cannot be addressed in detail in this paper. For reference, see the European Commission’s Communication: Online Platforms and the Digital Single Market Opportunities and Challenges for Europe, Brussels, 25.5.2016 COM (2016) 288 final.
Once again, this is not to say that these are all the possible classes of unfair clauses that one could find in the terms of online services. These are classes which were treated as exemplary, in order to demonstrate that, whatever the type of clause, its annotation can be performed by a machine.
“Rules” in the meaning ascribed by information technology: IF input X THEN output Y, not in the legal sense. However, as the reader can certainly see, both types resemble each other in structure.
According to http://techindex.law.stanford.edu/ at the moment of writing.
For the most recent examples, see, for example: The 6 most exciting AI advances of 2016 http://www.techrepublic.com/article/the-6-most-exciting-ai-advances-of-2016/.
Consider the “trolley problem” in the context of self-driving cars, i.e., if a car needs to sacrifice someone’s life to save another, what should it choose? For a good illustration see: http://moralmachine.mit.edu.
Consider the infamous example of a robot-judged beauty contest, in which the machine chose white people to be “more beautiful” than those with a darker skin colour: https://www.theguardian.com/technology/2016/sep/08/artificial-intelligence-beauty-contest-doesnt-like-black-people.
It can be found at the project’s webpage: http://uterms.software.
Important caveat: The recall is 1 to the best of our knowledge. In other words, the software annotates all the potentially unfair clauses which were earlier or later detected by a human reader when annotating the corpus. This is not say that all the readers will agree on the totality of choices, nor that some of the clauses which nor that some of the clauses, if annotated by others, would not have been omitted. All this is due to the necessarily evaluative character of the exercise, the problem addressed in “Automation of Annotation in Theory: Challenges and Solutions.”
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Acknowledgements
The authors would like to thank Zeppelin University, Forschungszentrum Verbraucher, Markt, Politik/CCMP (Director Lucia Reisch), for their funding and support, both of which made this research possible.
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Micklitz, HW., Pałka, P. & Panagis, Y. The Empire Strikes Back: Digital Control of Unfair Terms of Online Services. J Consum Policy 40, 367–388 (2017). https://doi.org/10.1007/s10603-017-9353-0
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DOI: https://doi.org/10.1007/s10603-017-9353-0