Melbourne Law School - Research Publications
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ItemNo Preview AvailableMaking robo-advisers careful? Duties of care in providing automated financial advice to consumers(ROUTLEDGE JOURNALS, TAYLOR & FRANCIS LTD, 2021-01-01)
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ItemProtecting Privacy in India: The Roles of Consent and Fairness in Data Protection(National Law School of India University, 2020)The Indian Personal Data Protection Bill 2019 provides a unique approach to balancing the elements of individual consent and fairness-based limitations that are used in data protection regimes in other parts of the world. Drawing on the fundamental values and interests recognised in KS Puttaswamy v. Union of India (2017) and the report of the Committee of Experts, the Bill requires consent of the data subject to data processing, and puts in place standards that consent must meet to be more than a forced formality. Its novelty lies in also proposing substantive obligations of fair and reasonable data processing, and by making organisations responsible, as statutory ‘data fiduciaries’, for complying with obligations protecting the interests of the data subject. The requirement that processing be fair, also written into European data protection law, is an opportunity to put data controllers under an obligation to protect the interests of data subjects. Data processing ought not to have a negative impact upon an individual’s interests, values and freedoms disproportionate to their positive gains. If robustly interpreted and applied, this could be an effective protection against the shortcomings of consent as a safeguard for protecting individual interests. European data protection law has yet to fully embrace this opportunity. If it did, then there would be less pressure to ensure a data subject’s consent meets ideal standards of ‘free and informed’, which is increasingly unrealistic in a modern information society. Considering the merits of these different approaches, with different degrees of relative emphasis upon individual consent and objective tests of fairness, prompts reflection upon the proper function of privacy and data protection legislation within society. Is it purely to enable individual expressions of informational self-determination — irrespective of whether the deal done is a good one? Or does data protection law also have a role in expressing community expectations by promoting norms and standards of fair dealing that are conducive to individual well-being and to civil society as a whole?
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ItemNo Preview AvailableThe Hidden Harms of Targeted Advertising by Algorithm and Interventions from the Consumer Protection Toolkit(National Law School of India, 2021-01-01)Developments in pervasive data collection and predictive data analytics are allowing firms to target consumers with increas ingly precise personalisedbehavioural and contextual advertising. These techniques give rise to new risks of harm in the attention economy by unduly influencing or manipulating consumers' deci sions and choices, and by narrowing the product options visible and available to them. In many countries, the legal response to concerns about targeted advertising by algorithm has been focused on privacy protection and data rights. These are important initiatives. However; consent-based data rights are unlikely to provide a comprehensive or even adequate response to the risks of harm to consumers occasioned by the kinds of algo- rithmically targeted advertising that are now possible. This paper suggests that a suite of responses from the consumer protection toolkit are required to address the different and potentially harm ful manifestations of algorithmic ally targeted advertising. These include bans and warnings as well as making use of standard safe- ty-net prohibitions on misleading and unconscionable/unfair con duct already in place in many jurisdictions.
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ItemNo Preview AvailableGood Proctor or "Big Brother"? Ethics of Online Exam Supervision Technologies.(Springer Science and Business Media LLC, 2021)Online exam supervision technologies have recently generated significant controversy and concern. Their use is now booming due to growing demand for online courses and for off-campus assessment options amid COVID-19 lockdowns. Online proctoring technologies purport to effectively oversee students sitting online exams by using artificial intelligence (AI) systems supplemented by human invigilators. Such technologies have alarmed some students who see them as a "Big Brother-like" threat to liberty and privacy, and as potentially unfair and discriminatory. However, some universities and educators defend their judicious use. Critical ethical appraisal of online proctoring technologies is overdue. This essay provides one of the first sustained moral philosophical analyses of these technologies, focusing on ethical notions of academic integrity, fairness, non-maleficence, transparency, privacy, autonomy, liberty, and trust. Most of these concepts are prominent in the new field of AI ethics, and all are relevant to education. The essay discusses these ethical issues. It also offers suggestions for educational institutions and educators interested in the technologies about the kinds of inquiries they need to make and the governance and review processes they might need to adopt to justify and remain accountable for using online proctoring technologies. The rapid and contentious rise of proctoring software provides a fruitful ethical case study of how AI is infiltrating all areas of life. The social impacts and moral consequences of this digital technology warrant ongoing scrutiny and study.
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ItemTransparency to contest differential pricing(Australian and New Zealand Societies for Computers and the Law, 2021)
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ItemShould Australia Introduce a Prohibition on Unfair Trading? Responding to Exploitative Business Systems in Person and Online(SPRINGER, 2021-03)Australian consumer protection law contains broad and flexible prohibitions on misleading and unconscionable conduct in trade or commerce. Yet concerns have been raised that these prohibitions are unsuitable for responding to predatory business systems. These are businesses that, by design or operation, target consumers experiencing vulnerability to offer costly products ill-suited to their needs. This concern has arisen in response to prominent instances of products of dubious efficacy offered to marginalized communities. It has also arisen from concerns over the increasing potential for data-driven digital marketing to manipulate consumer choice by targeting with fine-grained accuracy consumer vulnerabilities. In response to these concerns, it has been suggested that the Australian Consumer Law should be reformed, by introducing a prohibition on “unfair trading” inspired by the general prohibitions on such conduct in the EU and USA. This paper explores the key considerations relevant in assessing the merits of this proposed statutory “transplant.” Ultimately, the paper is supportive of the proposed reform, while also recognizing its limits.
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ItemFrustratingly Unclear? The Interplay Between Common Law, Statute and the ACL in Assessing Consumer Rights in a Time of Crisis(Thomson Reuters, 2020)The spread of COVID-19 and subsequent government regulation have substantially impacted service-providing industries. State and federal regulations concerning social gatherings and travel have, in many instances, rendered performance of contracts illegal, economically unworkable or futile. This article considers the remedies available to consumers for service contracts affected by the COVID-19 crisis, with a particular focus on the response of the airlines, and the commonly offered option of credit vouchers. In these unprecedented circumstances, it examines the complex interaction of contract law, including the doctrine of frustration and accompanying statutory incursions on remedy, and consumer rights under the Australian Consumer Law. The article calls for a consistent approach by service providers and the Australian Competition and Consumer Commission that gives consumers a consistent and fair remedy, without the need to resort to the labyrinthine interplay of common law and statute.
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ItemEvolution and Revolution: The Remedial Smorgasbord for Misleading Conduct in Australia(Florida International University, 2020)In Australia, the revolutionary Trade Practices Act 1974 (Cth) introduced, in section 52, a simple and powerful prohibition on conduct in trade or commerce that is “misleading or deceptive or likely to mislead or deceive.” The prohibition applies to business-to-business transactions as well as to those involving consumers and contains no requirement of fault on the part of the contravenor. Its purposes are explicitly instrumental: to protect consumers and promote fair business practices. The Act also introduced a veritable ‘smorgasbord’ of remedies for victims of misleading conduct that were equally revolutionary, granting to courts a wide-ranging remedial discretion to award relief that includes, for example, the power to vary contracts retroactively.
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ItemThe Consumer Guarantee Remedial Regime: Some Uncertainties and the Role of Common Law Analogy(LexisNexis, 2016)The Australian Consumer Law introduced a new regime of ‘consumer guarantees’ accompanied by a unique remedial regime applying specifically to failures to comply with those guarantees. The challenge posed by this kind of new legislative regime is to develop a thorough understanding of its meaning and scope in a context where its provisions are unlikely to be frequently considered by courts. This paper aims to contribute to the interpretative process by considering tribunal decisions dealing with the consumer guarantee remedial regime and, in particular, the identification of ‘major’ failures and compensation for ’leasonably foreseeable’ losses. More generally, the paper considers the proper relationship in this process between the statutory regime and the common law principles and doctrines with which the statute overlaps. Whilst the common law may provide useful insights in interpreting the statute, that regime is premised on the enforcement of distinct statutory rights protecting consumers and must be interpreted from that perspective.
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ItemConsumer Redress legislation: Simplifying or Subverting the Law of Contract(Wiley-Blackwell Publishing, 2017)© 2017 The Author. The growth of statutory consumer protection regimes in modern commercial societies has the potential profoundly to disrupt the private law landscape. Such schemes aim to increase access to justice for consumers by offering simplified and clear suites of rights and corresponding remedies. In so doing, however, they affect core areas of private law rights and remedies, and may come to undermine or replace existing contractual principles and policies. The result could be an incoherent system of private law with different principles and rules applying to commercial and consumer transactions. Coherence in the law requires that lawyers abandon their traditional ‘oil and water’ attitudes to legislative schemes and confront directly the interactions between these two bodies of law. This paper engages in that enquiry by considering the relationship between the relatively new consumer redress provisions in the Consumer Protection from Unfair Trading Regulations 2008 and general law principles.