This chapter argues that the influences on consumer choice should be revisited because the digital environment and the use of AI increase the urgency of having a clear criterion with which to distinguish permitted influences from prohibited ones. The current emphasis on either rational consumers or behaviourally influenced consumers operates with an ideal of unencumbered choice which has no place in reality and overlooks the fact that the law allows many subtle or not-so-subtle attempts to influence the actual behaviour of consumers. To effectively stand up to the force of AI-driven sales techniques, it may be necessary to update the existing framework of consumer protection.

This chapter examines the effects that legally-oriented AI developments will have on consumer protection and to consumers’ need for legal advice and representation. The chapter provides a brief survey of the many possible ways in which AI may influence consumers’ legal needs. It provides comparative analysis of the benefits and risks of the use of AI in the legal sphere, discusses the state of regulation in this area and argues in favor of a new regulatory framework.

Chapter 2 shows the falseness of two ideas that underlie the central elements of privacy law: that people make fully rational privacy choices and that they don’t care about their privacy. These notions create a dissonance between law and reality, which prevents laws from providing meaningful privacy protections. Contrary to rationality, context has an outsized impact on our privacy decisions and we can’t understand what risks are involved in our privacy “choices,” particularly with AI inferences. The notion that we’re apathetic is prevalent in popular discourse about how much people share online and the academic literature about “the privacy paradox.” Dismantling the myth of apathy shows there’s no privacy paradox. People simply face uncertainty and unknowable risks. People make privacy choices in a context of anti-privacy design, such as dark patterns. In this process, we’re manipulated by corporations, who are more aware of our biases than regulators are.

Chapter 4 delves into two efforts to reinforce consent: opt-in and informed choice. It illustrates why, in the information economy, they also fail. Power asymmetries enable systemic manipulation in the design of digital products and services. Manipulation by design thwarts improved consent provisions, interfering with people’s decision-making. People’s choices regarding their privacy are determined by the designs of the systems with which they interact. European and American attempts to regulate manipulation by changing tracking from ‘opt-out’ to ‘opt-in’ and reinforcing information crash on the illusion of consent. Contract law doctrines that aim to reduce manipulation are unsuitable because they assume mutually beneficial agreements, and privacy policies are neither. Best efforts to strengthen meaningful consent and choice, even where policies are specifically intended to protect users, ultimately are insufficient because of the environment in which privacy “decisions” take place.