2.nd IFTTA Europe Workshop

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2.nd IFTTA Europe Workshop Tourism
and New Technologies A New Age for Travel Law?
Protecting Travellers While Dealing with
(Software) Agents

• Manuel David Masseno
• Palma de Mallorca, April 2.nd 2009

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Protecting Travellers While Dealing with
(Software) Agents

• Current European Legal Framework
• Directive 2000/31/EC of the European Parliament
  and of the Council of 8 June 2000 on certain
  legal aspects of information society services, in
  particular electronic commerce, in the Internal
  Market ('Directive on electronic commerce')
• Directive 97/7/EC of the European Parliament and
  of the Council of 20 May 1997 on the protection
  of consumers in respect of distance contracts
• Council Directive 90/314/EEC of 13 June 1990 on
  package travel, package holidays and package
  tours
• With a common background
• Council Directive 93/13/EEC of 5 April 1993 on
  unfair terms in consumer contracts

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Protecting Travellers While Dealing with
(Software) Agents

• Regarding consumer contracts, the 'Directive on
  electronic commerce relies on Interactive
  Contracting
• Also in this context, Law is regarded as a
  technical device designed to accelerate and
  provide stability for Business practices (as in
  order or negotiable instruments and, mostly, in
  adhesion contracts and vending machines),
  therefore
• these rules shall not apply to individually
  negotiated terms (Art. 11.3)
• being assumed that we are always before standard
  form contracts (Art. 10.3)

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Protecting Travellers While Dealing with
(Software) Agents

• Therefore, we need to focus on the European
  regulations regarding standard form contracts
  (Council Directive 93/13/EEC of 5 April 1993 on
  unfair terms in consumer contracts)
• It only applies to those terms that the consumer
  was not able to influence
• 1. A contractual term which has not been
  individually negotiated shall be regarded as
  unfair if, contrary to the requirement of good
  faith, it causes a significant imbalance in the
  parties' rights and obligations arising under the
  contract, to the detriment of the consumer.
• 2. A term shall always be regarded as not
  individually negotiated where it has been drafted
  in advance and the consumer has therefore not
  been able to influence the substance of the term,
  particularly in the context of a pre-formulated
  standard contract. (Art. 3.)

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Protecting Travellers While Dealing with
(Software) Agents

• As main traits of this legal discipline we have
  that
• The excluding criterion is individual
  negotiation, so
• Its essential to clarify the meaning of
  negotiation
• Being its basic trait is the possibility of
  influencing the substance of the term and
• no effective influence is required, for instance
  through an actual change of a term drafted in
  advance or a concession made by the other party
• However, the simple chance of negotiation is not
  enough, being the supplier available to start
  such procedure, an actual negotiation had to
  happen.

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Protecting Travellers While Dealing with
(Software) Agents

• As a first conclusion
• taylor-made packages are left outside the range
  of most of the consumer protection rules of,
  both, the Directives on electronic commerce and
  on unfair terms in consumer contracts
• Anyway, consumers are not left in the wild, as
  some protection is still provided by Council
  Directive 90/314/EEC of 13 June 1990 on package
  travel, following Club-Tour / Gonçalves Garrido
  ratio decidendi (ECJ Case C-400/00, 30 April 2002)

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Protecting Travellers While Dealing with
(Software) Agents

• And what if the trader negotiates by the means of
  an Intelligent Agent (IA)?
• Plainly speaking, an IA is a computer program
  which reacts autonomously to changes of their
  environment and solve its task as far as
  possible independently
• a computer program, or electronic or other
  automated means, used by a person to initiate an
  action, or to respond to electronic messages or
  performances, on the persons behalf without
  review or action by an individual at the time of
  the action or response to the message or
  performance. (UCITA - Uniform Computer
  Information Transactions Act (2001) - USA)

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Protecting Travellers While Dealing with
(Software) Agents

• As generally considered, IAs main features are
• Reactivity (the ability to perceive an
  environment and respond to changes that occur
  with it)
• Proactivity (the ability to initiate
  goal-directed behaviour)
• Autonomy (the ability to operate without the
  direct intervention of humans or others, and have
  some kind of control over their action and
  internal state)
• Social ability (the capacity to interact with
  other intelligent agents or with human beings
  through a shared value)
• Adaptive behaviour (the ability to adjust to the
  habits, working methods and preferences of a
  user)
• Mobility (the ability to move around an
  electronic environment).

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Protecting Travellers While Dealing with
(Software) Agents

• However, IA are not Agentsas, at least until
  now, they have not the status of legal persons,
  in any jurisdiction
• So, by the means of imputation, all acts
  performed by an IA are binding to the person that
  put it in place, being the IA a Messenger
  (Nuncius), since it just conveys a persons
  declaration of intention
• Therefore, the user is fully bound for everything
  done by the IA, even by unexpected communications
  because it is theoretically possible that the
  Program would produce them

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Protecting Travellers While Dealing with
(Software) Agents

• Regarding the 'Directive on electronic commerce,
• As stated at the Executive Summary of the
  Proposal text Member States will not prevent
  the use of electronic systems as intelligent
  electronic agents
• Besides, Member States shall ensure that their
  legal systems allows contracts to be concluded by
  electronic means. Member States shall in
  particular ensure that legal requirements
  applicable to the contractual process neither
  create obstacles for the use of electronic
  contracts nor result in such contracts being
  deprived of legal effectiveness and validity on
  account of their having been made by electronic
  means. (Art. 9.1)

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Protecting Travellers While Dealing with
(Software) Agents

• Also, the UNCITRAL model law on electronic
  commerce (UN General Assembly Resolution 51/162
  of 16 December 1996) goes the same way, even more
  clearly
• Art. 2 provides that the originator of a data
  message includes both a person by whom or on
  whose behalf a message is purported to have been
  sent, adding the Article-by-Article Remarks
  that .. data messages that are generated
  automatically by computers without direct human
  intervention are intended to be covered by
  subparagraph (c) and
• Art. 13.2 (b) attributes the operations of
  electronic devices to the person who originates
  the data message if it was sent by an
  information system programmed by, or on behalf
  of, the originator to operate automatically.

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Protecting Travellers While Dealing with
(Software) Agents

• In economical terms, the costs of retrieving
  information (Search Agents) and performing
  contracts (Contract Agents) are dramatically
  reduced.
• Therefore, all contracts might be individually
  negotiated as in pre-modern times and the
  consumer protection regulations based on the
  control of mass contracting tend to become void.
• So whats the alternative, given the high
  level of consumer protection granted by Art.
  153.1 EC Treaty, also restated at Art. 38 of the
  Charter of Fundamental Rights of the European
  Union?

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Protecting Travellers While Dealing with
(Software) Agents

• An answer might be found at Directive 2005/29/EC
  of the European Parliament and of the Council of
  11 May 2005 concerning unfair business-to-consumer
  commercial practices
• This legal discipline is based on the concept of
  unfair commercial practices harming consumers'
  economic interests (Art 1.1 and 3.1)
• According to Art. 5, A commercial practice shall
  be unfair if
• (a) it is contrary to the requirements of
  professional diligence (id est, the standard
  of special skill and care which a trader may
  reasonably be expected to exercise towards
  consumers, commensurate with honest market
  practice and/or the general principle of good
  faith in the trader's field of activity)

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Protecting Travellers While Dealing with
(Software) Agents

• (b) it materially distorts or is likely to
  materially distort the economic behaviour with
  regard to the product of the average consumer
  whom it reaches or to whom it is addressed, or of
  the average member of the group when a commercial
  practice is directed to a particular group of
  consumers.
• Regarding contracts performed by IA, relevant are
  misleading actions (one that contains
  false information and is therefore untruthful or
  in any way, including overall presentation,
  deceives or is likely to deceive the average
  consumer, even if the information is factually
  correct ) (Art. 6 and 7)

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Protecting Travellers While Dealing with
(Software) Agents

• Besides, this is a maximum harmonisation (Art.
  3.1 and 5 and Art.4) and, explicitly, horizontal
  Directive (Art. 3.4)
• Therefore, the programming of IA able to perform
  legally binding contracts within the Internal
  Market will depend on the inclusion of Good Faith
  criteria, not just objective Good Faith but also
  subjective Good Faith
• And, as a matter of fact, these criteria have
  already been implemented, for instance, in
  robotic football, where fair play is a basic
  requirement.
• Thank You!