Restoring Human Dignity In Data-Driven Marketing

Restoring Human Dignity In Data-Driven Marketing Presented by: Mr. Trzaskowski Date: 11 January 2023 CASES C-203/15 AND C-698/15, TELEZ SVERIGE - 100. The interference [...] is very far-reaching and must be considered to be particularly serious. [...] without the [...] user being informed is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance - 102. Given the seriousness [...] only the objective of fighting serious crime is capable of justifying such a measure - 103. [...] the effectiveness of the fight against serious crime [...] [...] cannot in itself justify [...] general and indiscriminate retention of all traffic and location data [...] THE GOPR DISTILLED - Authorities • - - Accountability Data controller • Legitimacy • Transparency • Security Data subject • Empowerment REGULATING MARKETS - Markets: Supply and demand • Marketing is important • ... and so are rational choices - Marketing law: Regulating market failure • - Data protection law: Fundamental right • - Marketing is the rule | Requires absence of unfairness Processing is the exception | Requires fairness Empowerment, transparency and proportionality • GDPR: Also legitimacy, accountability and security EMPOWERMENT - Agency and the right to self-determination | Frankl • Rational choice theory and revealed preferences • Psychology: Bounded rationality and willpower  Ego depletion, adaptive preferences and rational apathy - - Transparency (informed choice) • Information does not equal transparency • Translucency? Absence of manipulation (genuine choice) • Sufficiently engage or appeal to the user's capacity for reflection and deliberation • Choice architecture  Friction, nudges and prompts CASE C-673/17, PLANET 49 We use cookies We would like to use cookies to collect statistics. This helps us improve the user experience of our website. We would also like to use marketing cookies, which help us market products. Necessary cookies ensure that the site works. Allow selection Allow all - 55. In that regard, it would appear impossible in practice to ascertain objectively whether a website user had actually given his or her consent to the processing of his or her personal data by not deselecting a pre-ticked checkbox nor, in any event, whether that consent had been informed. It is not inconceivable that a user would not have read the information accompanying the preselected checkbox, or even would not have noticed that checkbox, before continuing with his or her activity on the website visited. AGGRESSIVE COMMERCIAL PRACTICES - Use of harassment, coercion, including the use of physical force, and undue influence • - Timing, location, nature or persistence … means exploiting a position of power; apply pressure (also beyond physical force); significantly limits ability to make an informed decision Case C-628/17, Orange Polska, paras 46-47 • Aggressive practices include conducts that 'put pressure on the consumer such that his freedom of choice is significantly impaired' or establish an attitude that is 'liable to make that consumer feel uncomfortable' such as to 'confuse his thinking in relation to the transactional decision to be taken'. DARK PATTERNS - CA Consumer Privacy Act and CO Privacy Act • 'A user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice' - The EU Digital Services Act • Interfaces that deceives or manipulates ... or materially distorts/impairs ability to make free/informed decisions  Only 'online platforms'  NOT practices covered by UCPD or GOPR! • CMP. 'manipulation by design of choice architecture' • CNIL 19 December 2022 €60M (Microsoft/Bing)  More difficult to refuse cookies than accept • FTC 19 December 2022 $520M (Epic/Fortnite)  Default settings and deceptive interfaces NEW INFORMATION ASYMMETRIES - A three-tiered model • Tier 1: The product and the trader • Tier 2: Behavioral sciences (consumers in general)  Including persuasive technology • Tier 3: The individual consumer (personal data)  Personalized realities - - Compared to old-school salesmen • Scale, scope and precision of predictions - a priori • Normally, the consumer takes the decision to engage Levelling information asymmetries • Information, communication and transparency • Frames and storytelling  'Paying with personal data' UNDERSTANDING THE DEAL - Significance and envisaged consequences (art. 22) • - Popular understanding of DDBM • - Postman, Miller (7±2) and Dunbar (148) Understanding externalities • - Planet49: Comprehend the functioning of cookies Personal, social and societal Storytelling and frames • 'Free' = 'expensive' • 'Smart' = 'surveillance and behavior modification' • 'Freedom' = 'cognitive overload' • Paying with... WHAT TO DO? - Effective enforcement • Effective, proportionate and dissuasive fines • Irish DPC 4 January 2023 €390M (Meta/FB & Instagram)  Behavioral advertising based on contractual necessity - Is there hope in marketing? • - Humane technology and human welfare computing • - Tobacco and oil Technology that works for humanity Education/awareness • Conversations and better stories • Conscious and deliberate use of technology