Deception by Design

Big data, ubiquitous tracking, and artificial intelligence are enabling businesses to disseminate rapidly proliferating permutations of digital marketing and sales materials, each of which can be micro-targeted to particular consumers in real time and space. When the algorithms that design and deliver these advertisements, websites, and apps are optimized only for profit and deception is profitable, consumers will be deceived. Yet at the same time that digital deception is becoming inevitable, it is racing toward immunity from liability. The accepted evidentiary methods for proving deception, from direct application of the reasonable person standard to controlled experiments demonstrating the deceptiveness of a defendant’s conduct, are neither practicable nor scientifically valid when applied to vast numbers of unique, micro-targeted communications. This article identifies and explains this emerging threat to the legal regulation of the consumer marketplace and suggests ways in which the law might give businesses sufficient incentive to engage in fair marketing by design