"The computer said it was ok!", Workshop on the human rights implications of persuasive design and manipulation via digital products

19 November 2021, VU Amsterdam

Good morning, ladies and gentlemen,

• It is my great privilege to welcome you all and open this workshop which is going to discuss persuasive technology - something that we all encounter almost every day. It is true that, persuasive technology could produce positive results for individuals, but it could also be dangerous in terms of fundamental rights and freedoms. Therefore, it is of utmost importance to discuss the ethical and legal concerns raised by this technology.
• As human beings we are persuadable. Algorithms can persuade us in different ways. For instance, sometimes we stay connected for hours on YouTube due to the interesting content recommended by algorithms, or we end up buying something that we do not really need, because algorithms persuade us to do so.
• It is also possible that we come across some advertisements on social media that might be of interest to us. For example, a user visits a buyer's website to see a laptop, and then comes across the same laptop as an advertisement on social media. In other words, some social media platforms allow advertisers to target their users on their platforms. To do this, online shopping platforms place a targeting cookie on a user's computer and advertise their products on social media.
• Indeed, the question is whether those social media platforms clearly and fully inform their users concerning their cookie politics as requested by most regulations and directives, such as the General Data Protection Regulation (GDPR), ePrivacy Directive or the California Consumer Privacy Act (CCPA).

• Persuasive design may threaten democratic processes, such as elections, as we all saw in the Cambridge Analytica scandal. By predicting user preferences, it has the potential to interfere with an individual’s dignity, autonomy, and self-determination, which can also lead to the interaction of profiling.
• The above-mentioned are just a few examples of the impact of algorithms on human decision-making. In fact, algorithms and artificial intelligence are everywhere. Some companies use algorithms for identifying the best candidates for a job, universities use them in the admission processes, and they assist doctors or lawyers in their daily tasks. Therefore, being the set of algorithms, artificial intelligence changes our lives and consequently requires our urgent attention. Persuasive technologies are not an exception in this regard.
• The Council of Europe is the continent’s leading human rights organisation with 47 member States and protects and promotes human rights, democracy and the rule of law at pan-European level. The Council of Europe thus has a clear role to address the issue of the development and uses of artificial intelligence. The Organisation has already produced pioneering global legally-binding standards involving complex technological issues, such as the protection of personal data, bioethics and cybercrime, reconciling innovation and human rights protection. Moreover, the Council of Europe has developed many instruments addressing the impact of AI systems on human rights, democracy and the rule of law.
• Indeed, the 2019 Declaration by the Council of Europe’s Committee of Ministers on the manipulative capabilities of algorithmic processes addresses these issues. The Declaration contains a recommendation for Member States to regulate persuasion used in combination with AI, to protect democratic order:
• Recommendation CM/Rec(2007)16 of the Committee of Ministers to member States on measures to promote the public service value of the internet;
• Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for internet users;
• Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries.

• The Declaration states that data protection laws should consider the particular risks for and interests of those persons that may be especially unaware of the dangers of data exploitation. This includes children as well as persons belonging to marginalised communities who may face language barriers or other structural disadvantages. Also, it sorts individuals into categories, thereby reinforcing different forms of social, cultural, religious, legal and economic segregation and discrimination. It also facilitates the micro-targeting of individuals based on profiles in ways that may profoundly affect their lives.
• Finally, fine grained, sub-conscious and personalised levels of algorithmic persuasion may have significant effects on the cognitive autonomy of individuals and their right to form opinions and take independent decisions. These effects remain underexplored but cannot be underestimated. Not only may they weaken the exercise and enjoyment of individual human rights, but they may lead to the corrosion of the very foundation of the Council of Europe. Its central pillars of human rights, democracy and the rule of law are grounded on the fundamental belief in the equality and dignity of all humans as independent moral agents.
• In view of the foregoing, the Committee of Ministers draws attention to the growing threat to the right of human beings to form opinions and take decisions independently of automated systems, which emanates from advanced digital technologies. Attention should be paid particularly to their capacity to use personal and non-personal data to sort and micro-target people, to identify individual vulnerabilities and exploit accurate predictive knowledge, and to reconfigure social environments in order to meet specific goals and vested interests.
• Therefore, the Committee of Ministers encourages member States to assume their responsibility to address this threat, cf. “Declaration by the Committee of Ministers on the manipulative capabilities of algorithmic processes (Adopted by the Committee of Ministers on 13 February 2019 at the 1337th meeting of the Ministers' Deputies)”

CAHAI:

• On September 11, 2019, "the Committee of Ministers of the Council of Europe established an ad hoc committee on artificial intelligence (CAHAI) to “examine the feasibility and potential elements on the basis of broad multi-stakeholder consultations, of a legal framework for the development, design and application of artificial intelligence, based on the Council of Europe’s standards on human rights, democracy and the rule of law.”
• The Committee has a unique composition of bringing together member and observer States, as well as observers from civil society, academia and the private sector. Convinced of the importance of a global reflection and of combining efforts in this field, the CAHAI works in close co-operation with other international institutions, such as UNESCO, the OECD and the European Union.
• On December 2020, the CAHAI adopted the feasibility study to examine the need for an adequate legal framework to protect human rights, democracy, and the rule of law in light of new challenges posed by artificial intelligence (AI) systems.
• In 2022, a new committee to take over after the CAHAI will work on the potential development of a legal framework on AI which is a major step forwards, critical to ensuring that human rights, democracy and the rule of law are appropriately safeguarded in the context of the development and use of AI systems.
• The topic of today's workshop is therefore crucial. The purpose of this workshop is to investigate the functioning of persuasive design and identify possible interferences it creates with the fundamental rights framework. The workshop also aims to explore possible criteria for the legality of persuasive design, and underlying values. Therefore, your contribution is greatly appreciated.

• I wish you all the best and most fruitful discussions.

Thank you for your attention.