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Home > IPLJ > Vol. XXXIII > No. 2 (2023)

 

Michal Lavi

Abstract

Decision-making should reflect personal autonomy. Yet, it is not entirely an autonomous process. Influencing individuals’ decision-making is not new. It is and always has been the engine that drives markets, politics, and debates. However, in the digital marketplace of ideas the nature of influence is different in scale, scope, and depth. The asymmetry of information shapes a new model of surveillance capitalism. This model promises profits gained by behavioral information collected from consumers and personal targeting. The Internet of Things, Big Data and Artificial Intelligence open a new dimension for manipulation. In the age of Metaverse that would be mediated through virtual spaces and augmented reality manipulation is expected to get stronger. Such manipulation could be performed by either commercial corporations or governments, though this Article primarily focuses on the former, rather than the latter.

Surveillance capitalism must depend on technology but also on marketing, as commercial entities push their goods and agendas unto their consumers. This new economic order presents benefits in the form of improved services, but it also has negative consequences: it treats individuals as instruments; it may infringe on individuals’ autonomy and future development; and it manipulates consumers to make commercial choices that could potentially harm their own welfare. Moreover, it may also hinder individuals’ free speech and erode some of the privileges enshrined in a democracy.

What can be done to limit the negative consequences of hyper-manipulation in digital markets? Should the law impose limitations on digital influence? If so, how and when? This Article aims to answer these questions in the following manner:

First, this Article demonstrates how companies influence decisions by collecting, analyzing, and manipulating information. Understanding the tools of the new economic order is the first step in developing legal policy that mitigates harm.

Second, this Article analyzes the concept of manipulation. It explains how digital manipulation differs from traditional commercial influences in scope, scale, and depth. Since there are many forms of manipulation, an outright ban on manipulation is not possible, nor is it encouraged since it could undermine the very basis of free markets and even free speech. As a result, this Article proposes a limiting principle on entities identified in literature as “powerful commercial speakers,” focusing on regulating lies and misrepresentations of these entities. This Article outlines disclosure obligations of contextual elements of advertisements and imposes a duty of avoiding false information. In addition to administrative enforcement of commercial lies and misrepresentations, this Article advocates for a new remedy of compensation for autonomy infringement when a powerful speaker lies or disobeys mandated disclosure on products.

Third, this Article proposes a complementary solution for long-term effects of manipulation. This solution does not focus on the manipulation itself, but rather offers limitations on data retention for commercial purposes. Such limitations can mitigate the depth of manipulation and may prevent commercial entities from shackling individuals to their past decisions.

Fourth, this Article addresses possible objections to the proposed solutions, by demonstrating that they are not in conflict with the First Amendment, but rather promote freedom of expression.

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