Keyword: manipulation

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}, }

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

Sax, M.
2021

Abstract

In the digital society, many of our everyday activities take place within digital choice architectures that become increasingly good at understanding and shaping our behavior. Health apps are a perfect example of this trend: they are easy to download and use and promise user empowerment. By collecting and analyzing user data, health apps promise to be able to ‘get to know’ their users and deliver personalized feedback and suggestions for better health outcomes. But this promise of user empowerment also comes with a risk of user manipulation. Most of the popular health apps are for-profit services. To monetize their userbase, they can rely on the very same user data collection, data analysis, and targeting techniques to shape the behavior of health app users in ways that benefit the health app provider, rather than the users themselves. As it turns out, the very conditions for empowerment largely overlap with the conditions for manipulation. This dissertation offers an ethical and legal analysis of the tension between empowerment and manipulation in for-profit health apps, and digital choice architectures more generally. Building on ethical theories of personal autonomy and manipulation, the dissertation develops an ethical framework to evaluate the design and commercial practices of health apps. This ethical framework is then used to develop novel interpretations of key concepts in the Unfair Commercial Practices Directive (UCPD). Based on these novel interpretations of key concepts, it is argued that the UCPD has an important role to play in addressing consumer manipulation.

autonomy, Consumer law, health apps, manipulation, nudging

Bibtex

PhD Thesis{Sax2021bb, title = {Between Empowerment and Manipulation: The Ethics and Regulation of For-Profit Health Apps}, author = {Sax, M.}, url = {https://dare.uva.nl/search?identifier=52225d37-e7e1-4883-9dab-a3f5d3a063d8}, year = {0326}, date = {2021-03-26}, abstract = {In the digital society, many of our everyday activities take place within digital choice architectures that become increasingly good at understanding and shaping our behavior. Health apps are a perfect example of this trend: they are easy to download and use and promise user empowerment. By collecting and analyzing user data, health apps promise to be able to ‘get to know’ their users and deliver personalized feedback and suggestions for better health outcomes. But this promise of user empowerment also comes with a risk of user manipulation. Most of the popular health apps are for-profit services. To monetize their userbase, they can rely on the very same user data collection, data analysis, and targeting techniques to shape the behavior of health app users in ways that benefit the health app provider, rather than the users themselves. As it turns out, the very conditions for empowerment largely overlap with the conditions for manipulation. This dissertation offers an ethical and legal analysis of the tension between empowerment and manipulation in for-profit health apps, and digital choice architectures more generally. Building on ethical theories of personal autonomy and manipulation, the dissertation develops an ethical framework to evaluate the design and commercial practices of health apps. This ethical framework is then used to develop novel interpretations of key concepts in the Unfair Commercial Practices Directive (UCPD). Based on these novel interpretations of key concepts, it is argued that the UCPD has an important role to play in addressing consumer manipulation.}, keywords = {autonomy, Consumer law, health apps, manipulation, nudging}, }

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}, }

Getting under your skin(s): A legal-ethical exploration of Fortnite’s transformation into a content delivery platform and its manipulative potential external link

Sax, M. & Ausloos, J.
Interactive Entertainment Law Review, vol. 4, num: 1, 2021

Abstract

This paper investigates the ethical and legal implications of increasingly manipulative practices in the gaming industry by looking at one of the currently most popular and profitable video games in the world. Fortnite has morphed from an online game into a quasi-social network and an important cultural reference point in the lifeworld of many (young) people. The game is also emblematic of the freemium business model, with strong incentives to design the game in a manner which maximises microtransactions. This article suggests that to properly understand Fortnite’s practices – which we predict will become more widely adopted in the video game industry in the near future – we need an additional perspective. Fortnite is not only designed for hyper-engagement; its search for continued growth and sustained relevance is driving its transformation from being a mere video game into a content delivery platform. This means that third parties can offer non game-related services to players within Fortnite’s immersive game experience. In this paper, we draw on an ethical theory of manipulation (which defines manipulation as an ethically problematic influence on a person’s behaviour) to explore whether the gaming experience offered by Fortnite harbours manipulative potential. To legally address the manipulative potential of commercial video game practices such as the ones found in Fortnite, we turn to European data protection and consumer protection law. More specifically, we explore how the European Union’s General Data Protection Regulation and Unfair Commercial Practices Directive can provide regulators with tools to address Fortnite’s manipulative potential and to make Fortnite (more) forthright.

Consumer law, Data protection law, Fortnite, manipulation, Platforms, video games

Bibtex

Article{SaxAusloos2021, title = {Getting under your skin(s): A legal-ethical exploration of Fortnite’s transformation into a content delivery platform and its manipulative potential}, author = {Sax, M. and Ausloos, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3764489}, year = {0301}, date = {2021-03-01}, journal = {Interactive Entertainment Law Review}, volume = {4}, number = {1}, pages = {}, abstract = {This paper investigates the ethical and legal implications of increasingly manipulative practices in the gaming industry by looking at one of the currently most popular and profitable video games in the world. Fortnite has morphed from an online game into a quasi-social network and an important cultural reference point in the lifeworld of many (young) people. The game is also emblematic of the freemium business model, with strong incentives to design the game in a manner which maximises microtransactions. This article suggests that to properly understand Fortnite’s practices – which we predict will become more widely adopted in the video game industry in the near future – we need an additional perspective. Fortnite is not only designed for hyper-engagement; its search for continued growth and sustained relevance is driving its transformation from being a mere video game into a content delivery platform. This means that third parties can offer non game-related services to players within Fortnite’s immersive game experience. In this paper, we draw on an ethical theory of manipulation (which defines manipulation as an ethically problematic influence on a person’s behaviour) to explore whether the gaming experience offered by Fortnite harbours manipulative potential. To legally address the manipulative potential of commercial video game practices such as the ones found in Fortnite, we turn to European data protection and consumer protection law. More specifically, we explore how the European Union’s General Data Protection Regulation and Unfair Commercial Practices Directive can provide regulators with tools to address Fortnite’s manipulative potential and to make Fortnite (more) forthright.}, keywords = {Consumer law, Data protection law, Fortnite, manipulation, Platforms, video games}, }

Optimization of what? For-profit health apps as manipulative digital environments external link

Sax, M.
Ethics and Information Technology, vol. 23, num: 3, pp: 345-361, 2021

Abstract

Mobile health applications (‘health apps’) that promise the user to help her with some aspect of her health are very popular: for-profit apps such as MyFitnessPal, Fitbit, or Headspace have tens of millions of users each. For-profit health apps are designed and run as optimization systems. One would expect that these health apps aim to optimize the health of the user, but in reality they aim to optimize user engagement and, in effect, conversion. This is problematic, I argue, because digital health environments that aim to optimize user engagement risk being manipulative. To develop this argument, I first provide a brief analysis of the underlying business models and the resulting designs of the digital environments provided by popular for-profit health apps. In a second step, I present a concept of manipulation that can help analyze digital environments such as health apps. In the last part of the article, I use my concept of manipulation to analyze the manipulative potential of for-profit health apps. Although for-profit health can certainly empower their users, the conditions for empowerment also largely overlap with the conditions for manipulation. As a result, we should be cautious when embracing the empowerment discourse surrounding health apps. An additional aim of this article is to contribute to the rapidly growing literature on digital choice architectures and the ethics of influencing behavior through such choice architectures. I take health apps to be a paradigmatic example of digital choice architectures that give rise to ethical questions, so my analysis of the manipulative potential of health apps can also inform the larger literature on digital choice architectures.

autonomy, choice architectures, health apps, manipulation, mhealh

Bibtex

Article{Sax2021, title = {Optimization of what? For-profit health apps as manipulative digital environments}, author = {Sax, M.}, url = {https://link.springer.com/article/10.1007/s10676-020-09576-6}, doi = {https://doi.org/10.1007/s10676-020-09576-6}, year = {0103}, date = {2021-01-03}, journal = {Ethics and Information Technology}, volume = {23}, number = {3}, pages = {345-361}, abstract = {Mobile health applications (‘health apps’) that promise the user to help her with some aspect of her health are very popular: for-profit apps such as MyFitnessPal, Fitbit, or Headspace have tens of millions of users each. For-profit health apps are designed and run as optimization systems. One would expect that these health apps aim to optimize the health of the user, but in reality they aim to optimize user engagement and, in effect, conversion. This is problematic, I argue, because digital health environments that aim to optimize user engagement risk being manipulative. To develop this argument, I first provide a brief analysis of the underlying business models and the resulting designs of the digital environments provided by popular for-profit health apps. In a second step, I present a concept of manipulation that can help analyze digital environments such as health apps. In the last part of the article, I use my concept of manipulation to analyze the manipulative potential of for-profit health apps. Although for-profit health can certainly empower their users, the conditions for empowerment also largely overlap with the conditions for manipulation. As a result, we should be cautious when embracing the empowerment discourse surrounding health apps. An additional aim of this article is to contribute to the rapidly growing literature on digital choice architectures and the ethics of influencing behavior through such choice architectures. I take health apps to be a paradigmatic example of digital choice architectures that give rise to ethical questions, so my analysis of the manipulative potential of health apps can also inform the larger literature on digital choice architectures.}, keywords = {autonomy, choice architectures, health apps, manipulation, mhealh}, }

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}, }