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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ItemNo Preview AvailableBeyond the unwritten law: The limits of statutory unconscionable conduct(Lexis, 2023)The meaning and scope of the statutory prohibition on unconscionable conduct in s 21 of the Australian Consumer Law (and s 12CB of the Australian Securities and Investments Act) have proven consistently uncertain, particularly over the extent to which the prohibition is not ‘limited by the unwritten law’. In its latest iteration, the majority decision of the High Court in Stubbings v Jams 2 Pty Ltd gives weight to a conservative model of statutory unconscionable conduct, based on the equitable doctrine of unconscionable dealing. This approach is perhaps unsurprising given the express invocation of the concept of unconscionability to describe the statutory standard of prohibited conduct. But it is also problematic because the approach neglects the guidance that may be gained from the very provisions of the statute in determining whether conduct is unconscionable. This means the potential of the statutory prohibition in addressing market misconduct, unlimited by the unwritten law, is stifled. In particular, the current conservative approach to statutory unconscionable conduct may be ill-suited to responding to businesses that use insights from their relationship with consumers, rather than an overt flexing of superior bargaining power, to influence outcomes in their favour. If it is thought appropriate to address these more subtle kinds of misconduct, then we suggest that, rather than accepting another round of reforms to the scope of the statutory prohibition, it may be time to recognise its limits.
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ItemMisleading AI: Regulatory Strategies for Algorithmic Transparency in Technologies Augmenting Consumer Decision-Making(Loyola University Chicago, 2023)Increasingly, consumers’ decisions about what to buy are mediated through digital tools promoted as using “AI”, “data” or “algorithms” to assist consumers in making decisions. These kinds of digital information intermediaries include such diverse technologies as recommender systems, comparison sites, virtual voice assistants, and chatbots. They are promoted as effective and efficient ways of assisting consumers making decisions in the face of otherwise insurmountable volumes of information. But such tools also hold the potential to mislead consumers, amongst other possible harms, including about their capacity, efficacy, and identity. Most consumer protection regimes contain broad and flexible prohibitions on misleading conduct that are, in principle, fit to tackle the harms of misleading AI in consumer tools. This article argues that, in practice, the challenge may lie in establishing that a contravention has occurred at all. The key characteristics that define AI informed consumer decision-making support tools ––opacity, adaptivity, scale, and personalization –– may make contraventions of the law hard to detect. The paper considers whether insights from proposed frameworks for ethical or responsible AI, which emphasise the value of transparency and explanations in data driven models, may be useful in supplementing consumer protection law in responding to concerns of misleading AI, as well as the role of regulators in making transparency initiatives effective.
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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.