Keyword: unfair commercial practices

Choice Architectures in the Digital Economy: Towards a New Understanding of Digital Vulnerability external link

Helberger, N., Sax, M., Strycharz, J. & Micklitz, H.-W.
Journal of Consumer Policy, vol. 45, iss. : 2, pp: 175-200, 2022

Abstract

In the digital economy, consumer vulnerability is not simply a vantage point from which to assess some consumers’ lack of ability to activate their awareness of persuasion. Instead, digital vulnerability describes a universal state of defencelessness and susceptibility to (the exploitation of) power imbalances that are the result of the increasing automation of commerce, datafied consumer–seller relations, and the very architecture of digital marketplaces. Digital vulnerability, we argue, is architectural, relational, and data-driven. Based on our concept of digital vulnerability, we demonstrate how and why using digital technology to render consumers vulnerable is the epitome of an unfair digital commercial practice.

dark patterns, data-driven marketing strategies, digital marketplaces, manipulation, Platforms, unfair commercial practices, vulnerability

Bibtex

Article{nokey, title = {Choice Architectures in the Digital Economy: Towards a New Understanding of Digital Vulnerability}, author = {Helberger, N. and Sax, M. and Strycharz, J. and Micklitz, H.-W.}, url = {https://link.springer.com/article/10.1007/s10603-021-09500-5}, doi = {https://doi.org/10.1007/s10603-021-09500-5}, year = {0524}, date = {2022-05-24}, journal = {Journal of Consumer Policy}, volume = {45}, issue = {2}, pages = {175-200}, abstract = {In the digital economy, consumer vulnerability is not simply a vantage point from which to assess some consumers’ lack of ability to activate their awareness of persuasion. Instead, digital vulnerability describes a universal state of defencelessness and susceptibility to (the exploitation of) power imbalances that are the result of the increasing automation of commerce, datafied consumer–seller relations, and the very architecture of digital marketplaces. Digital vulnerability, we argue, is architectural, relational, and data-driven. Based on our concept of digital vulnerability, we demonstrate how and why using digital technology to render consumers vulnerable is the epitome of an unfair digital commercial practice.}, keywords = {dark patterns, data-driven marketing strategies, digital marketplaces, manipulation, Platforms, unfair commercial practices, vulnerability}, }

Between Empowerment and Manipulation: The Ethics and Regulation of For-Profit Health Apps external link

Sax, M.
Wolters Kluwer, 0930, Series: Information Law Series, ISBN: 9789403537917

Consumer law, health apps, Kluwer Information Law Series, manipulation, unfair commercial practices

Bibtex

Book{Sax2021f, title = {Between Empowerment and Manipulation: The Ethics and Regulation of For-Profit Health Apps}, author = {Sax, M.}, url = {https://www.ivir.nl/sax_info_47-2/}, year = {0930}, date = {2021-09-30}, keywords = {Consumer law, health apps, Kluwer Information Law Series, manipulation, unfair commercial practices}, }

EU Consumer Protection 2.0: Structural Asymmetries in Digital Consumer Markets external link

Helberger, N., Lynskey, O., Micklitz, H.-W., Rott, P., Sax, M. & Strycharz, J.
2021

Consumer law, Data protection, manipulation, unfair commercial practices

Bibtex

Report{Helberger2021, title = {EU Consumer Protection 2.0: Structural Asymmetries in Digital Consumer Markets}, author = {Helberger, N. and Lynskey, O. and Micklitz, H.-W. and Rott, P. and Sax, M. and Strycharz, J.}, url = {https://www.beuc.eu/publications/beuc-x-2021-018_eu_consumer_protection.0_0.pdf}, year = {0305}, date = {2021-03-05}, keywords = {Consumer law, Data protection, manipulation, unfair commercial practices}, }

Health as a Means Towards Profitable Ends: mHealth Apps, User Autonomy, and Unfair Commercial Practices external link

Sax, M., Helberger, N. & Bol, N.
Journal of Consumer Policy, vol. 41, num: 2, pp: 103-134, 2018

Abstract

In this article, we discuss mHealth apps and their potential to influence the user’s behaviour in increasingly persuasive ways. More specifically, we call attention to the fact that mHealth apps often seek to not only influence the health behaviour of users but also their economic behaviour by merging health and commercial content in ways that are hard to detect. We argue that (1) such merging of health and commercial content raises specific questions concerning the autonomy of mHealth app users, and (2) consumer law offers a promising legal lens to address questions concerning user protection in this context. Based on an empirically informed ethical analysis of autonomy, we develop a fine-grained framework that incorporates three different requirements for autonomy that we call “independence,” “authenticity,” and “options.” This framework also differentiates between three different stages of mHealth app use, namely installing, starting to use, and continuing to use an app. As a result, user autonomy can be analysed in a nuanced and precise manner. Since the concept of autonomy plays a prominent, yet poorly understood role in unfair commercial practice law, we utilize the ethical analysis of autonomy to guide our legal analysis of the proper application of unfair commercial practice law in the mHealth app domain.

autonomy, frontpage, manipulation, mHealth apps, Oneerlijke mededinging, representative survey data, unfair commercial practices

Bibtex

Article{Sax2018, title = {Health as a Means Towards Profitable Ends: mHealth Apps, User Autonomy, and Unfair Commercial Practices}, author = {Sax, M. and Helberger, N. and Bol, N.}, url = {https://link.springer.com/article/10.1007/s10603-018-9374-3}, doi = {https://doi.org/10.1007/s10603-018-9374-3}, year = {0522}, date = {2018-05-22}, journal = {Journal of Consumer Policy}, volume = {41}, number = {2}, pages = {103-134}, abstract = {In this article, we discuss mHealth apps and their potential to influence the user’s behaviour in increasingly persuasive ways. More specifically, we call attention to the fact that mHealth apps often seek to not only influence the health behaviour of users but also their economic behaviour by merging health and commercial content in ways that are hard to detect. We argue that (1) such merging of health and commercial content raises specific questions concerning the autonomy of mHealth app users, and (2) consumer law offers a promising legal lens to address questions concerning user protection in this context. Based on an empirically informed ethical analysis of autonomy, we develop a fine-grained framework that incorporates three different requirements for autonomy that we call “independence,” “authenticity,” and “options.” This framework also differentiates between three different stages of mHealth app use, namely installing, starting to use, and continuing to use an app. As a result, user autonomy can be analysed in a nuanced and precise manner. Since the concept of autonomy plays a prominent, yet poorly understood role in unfair commercial practice law, we utilize the ethical analysis of autonomy to guide our legal analysis of the proper application of unfair commercial practice law in the mHealth app domain.}, keywords = {autonomy, frontpage, manipulation, mHealth apps, Oneerlijke mededinging, representative survey data, unfair commercial practices}, }

Unfair Commercial Practices: A Complementary Approach to Privacy Protection external link

van Eijk, N., Hoofnagle, C.J. & Kannekens, E.
European Data Protection Law Review, vol. 2017, num: 3, pp: 325-337, 2017

Abstract

Millions of European internet users access online platforms where their personal data is being collected, processed, analysed or sold. The existence of some of the largest online platforms is entirely based on data driven business models. In the European Union, the protection of personal data is considered a fundamental right. Under Article 8(3) of the EU Charter of Fundamental Rights, compliance with data protection rules should be subject to control by an independent authority. In the EU, enforcement of privacy rules almost solely takes place by the national data protection authorities. They typically apply sector-specific rules, based on the EU Data Protection Directive. In the United States, the Federal Trade Commission is the primary enforcer of consumers’ (online) privacy interests. The agency’s competence is not based on the protection of fundamental rights, but on the basis that maintenance of a competitive, fair marketplace will provide the right choices for consumers to take. In this Article the US legal framework will be discussed and compared to the EU legal framework, which forms our finding that in the EU rules on unfair commercial practices could be enforced in a similar manner to protect people’s privacy. In the EU, the many frictions concerning the market/consumer-oriented use of personal data form a good reason to actually deal with these frictions in a market/consumer legal framework.

frontpage, Fundamental rights, Online platforms, Personal data, Privacy, unfair commercial practices

Bibtex

Article{vanEijk2017b, title = {Unfair Commercial Practices: A Complementary Approach to Privacy Protection}, author = {van Eijk, N. and Hoofnagle, C.J. and Kannekens, E.}, url = {https://www.ivir.nl/publicaties/download/edpl_2017_03.pdf}, doi = {https://doi.org/https://doi.org/10.21552/edpl/2017/3/7}, year = {1019}, date = {2017-10-19}, journal = {European Data Protection Law Review}, volume = {2017}, number = {3}, pages = {325-337}, abstract = {Millions of European internet users access online platforms where their personal data is being collected, processed, analysed or sold. The existence of some of the largest online platforms is entirely based on data driven business models. In the European Union, the protection of personal data is considered a fundamental right. Under Article 8(3) of the EU Charter of Fundamental Rights, compliance with data protection rules should be subject to control by an independent authority. In the EU, enforcement of privacy rules almost solely takes place by the national data protection authorities. They typically apply sector-specific rules, based on the EU Data Protection Directive. In the United States, the Federal Trade Commission is the primary enforcer of consumers’ (online) privacy interests. The agency’s competence is not based on the protection of fundamental rights, but on the basis that maintenance of a competitive, fair marketplace will provide the right choices for consumers to take. In this Article the US legal framework will be discussed and compared to the EU legal framework, which forms our finding that in the EU rules on unfair commercial practices could be enforced in a similar manner to protect people’s privacy. In the EU, the many frictions concerning the market/consumer-oriented use of personal data form a good reason to actually deal with these frictions in a market/consumer legal framework.}, keywords = {frontpage, Fundamental rights, Online platforms, Personal data, Privacy, unfair commercial practices}, }