Research On The Legal Regulation Of Commercial Automatic Decision Algorithm

With the development of intelligent technology and the economic application of algorithmic technique,the concept of commercial automatic decision-making algorithm has emerged,which brings a lot of convenience to consumer’s virtual and real life and improves the efficiency of economic resources allocation.However,the problems such as algorithmic discrimination and algorithmic abduction have also arisen,endangering the basic rights and interests of consumers,such as the right to fair deals and the right of free choice.Consequently,the legal community have taken an interest in commercial automatic decision-making algorithm.Due to the novelty and advancement of the algorithmic technique,the research on the legal issues of the algorithm has developed slowly in recent years.At the same time,the application of algorithms expands into many fields such as politics,economy,society,culture,and so on.Therefore,the domestic and foreign research on the legal issues of algorithm mainly focuses on the study of jurisprudence and the philosophy of right or focuses on the specific algorithmic issues and their regulation,such as algorithmic discrimination and its regulation.The research on the commercial automatic decision-making algorithm,“as a kind of specific application fields of algorithm”,is more scare,leaving alone that of the economic law’s and especially the consumer law’s perspectives.Due to the lack of research result,the laws and regulations concerning the regulation of commercial automatic decision-making algorithm are relatively insufficient,and there are only several provisions in the relevant laws and regulations,which is far from systematic.At the same time,there are many problems in the enforcement and judicial field.To make up the lack of research on the legal regulation of commercial automatic decision-making algorithm,and to provide a little intelligence for the construction and perfection of the legal regulation system of commercial automatic decision-making algorithm in our country,this paper attempts to study the theme of the legal regulation of commercial automatic decision-making algorithm from a consumer law perspective hoping to develop some useful suggestions.This paper takes the consumer law perspective,and mainly takes the research methods of comparative study,empirical study,and historical study,to discuss and study the concept and problems of commercial automatic decision-making algorithm,and the theoretical basis,legislative status quo,current problems and countermeasures of the legal regulation of commercial automatic decision-making algorithm.This paper contains five chapters.Logically,it can be divided into three parts: the first part is the basic part(chapter 1 and Chapter 2),which mainly explores the legal concept of commercial automatic decision-making algorithm and divides up the problems of commercial automatic decision-making algorithm into six types by a typological method.Then,this part explores and absorbs the theoretical basis of the legal regulation of commercial automatic decision-making algorithm,to lay down the foundation for the following study.The second part is about challenges.(Chapter 3and Chapter 4),which mainly combs and reviews the status quo of legislation,enforcement,and judiciary concerning the legal regulation of commercial automatic decision-making algorithm,and scans the problems of it.The third part is to explores countermeasures.(the fifth chapter),which mainly develops the countermeasure to perfect the legal regulation system of commercial automatic decision-making algorithm according to the problems identified by the second part.The five chapters are separately expounded as follows:Chapter I:cognizing the commercial automatic decision algorithm in theory.This chapter mainly focuses on “What is commercial automatic decision-making algorithm”and “What are the problems of commercial automatic decision-making algorithm”.Firstly,in the context of economic law,we should view the commercial automatic decision-making algorithm as a kind of “system entity”,which can form legal,economic,political and social relation with counterpart of relative people.At the same time,the “system entity” may violate the rights and interests of relative people and have the role of a dominant decision-maker.Therefore,we can define the commercial automatic decision-making algorithm as “an automatic system,which is deployed and operated by the enterprises or other profit-making organizations,is used for sale or exchange of commodity and service,and can take the place of relative staff to make decisions.” Secondly,because of the complexity of algorithmic technique and the economy,the problems caused by commercial automatic decision-making algorithm are also complicated.Therefore,we can divide these problems into six types by typological method,including algorithmic dysfunctions,algorithmic discrimination,algorithmic abduction,algorithmic mining,algorithmic tacit collusion,and algorithmic convergence.The six types of problems have different causes and potentially harmful effects,and they also violate different types of rights and interests of the consumer.Chapter II: The theoretical basis of the legal regulation of commercial automatic decision-making algorithms.This chapter attempts to examine "which theories can provide help and enlightenment for the legal regulation of commercial automatic decision-making algorithms." On the whole,the theory of risk society allows us to realize the multi-dimensions of the problems caused by commercial automatic decision-making algorithms.Namely,it has multiple dimensions of natural and social attributes,realism and constructivism,experience-oriented and norm-oriented.At the same time,the theory of risk society also enlightens us that in the face of many problems caused by commercial automatic decision-making algorithm,we can introduce a more forward-looking,democratic,and inclusive legal regulation mechanism,and we can try to introduce a governance mechanism of social pluralism and co-governance.From the theory of consumer sovereignty,we can find that the generation and application of commercial automatic decision-making algorithms have strengthened the realization of consumer sovereign status,while they had a certain obstructive effect on it.We should take a comprehensive view of the positive and negative effects brought by commercial automatic decision-making algorithm,and restrain the negative effects brought by commercial automatic decision-making algorithm through the strengthening of consumer rights,the empowerment of consumer groups,and the maintenance of market order,to consolidate the position of consumer sovereignty in the market in the intelligent era.Code regulation theory brings us a new regulatory idea and method of "indirect regulation through code",which has brought enlightenment on concepts,methods,and tools to the legal regulation of commercial automatic decision-making algorithm.Chapter III: Investigation on the current status of legal regulation of commercial automatic decision-making algorithm.This chapter mainly sorts out the "legislative,law enforcement and judicial status of our country’s commercial automatic decision-making algorithm regulations".At this stage,in response to the issues related to commercial automatic decision-making algorithm that have been exposed in our country’s market,the laws such as "E-commerce Law",regulations such as asset management regulation,and other self-discipline norms such as the "New Generation of Artificial Intelligence Industry Self-Regulation Convention" and national standards such as "Cyber Security Standard Practice Guide" have responded to them through corresponding commercial automatic decision-making algorithm regulation clauses.Law enforcement agencies have adopted four types of law enforcement measures to regulate commercial automatic decision-making algorithms,including consultation and interaction,command and control,reputation derogation,and ex-post punishment law enforcement measures.The judiciary has also heard and judged disputes related to commercial automatic decision-making algorithms,and formed some representative cases.Chapter IV: The review of the issues in our country’s legal regulations of commercial automatic decision algorithms ".This chapter mainly reflects on " what are the current issues in our country’s legal regulations of commercial automatic decision algorithms.They include system-level issues,path-level issues,and measures-level issues.From a system perspective,the current regulation of commercial automatic decision-making algorithms in our country lacks independent and unified legislation,and its clauses are too advocating and principled.From the perspective of the path,the current regulation of commercial automatic decision-making algorithms in our country mainly follows a command-and-control path and a “technology-neutrality”approach.The former has issues such as asymmetry of regulatory information,excessively high execution costs,and insufficient objective effectiveness,while the latter has problems such as the possibility of algorithm companies evading responsibility,insufficient efficiency,and non-compliance with public interests.From the perspective of measures,the measures stipulated by the legislation of commercial automatic decision-making algorithm regulation have the issues of poor implementability and insufficient expected effects.The law enforcement practice measures of commercial automatic decision-making algorithm regulation have issues such as insufficient binding force,poor pertinence,and high social costs.Chapter V: The system improvement of legal regulations of commercial automatic decision algorithms.This chapter attempts to explore "specific countermeasures and plans for the improvement and perfection of legal regulations of commercial automatic decision algorithms in our country." In response to the above problems,we should start from three levels of system improvement,path transformation,and measure innovation.The first is the improvement of the legal regulation system.The improvement of the system requires the formulation of specialized and unified commercial automatic decision-making algorithm regulation legislation,and at the same time,the existing legal clauses and rules should be perfected as much as possible to achieve the refinement of the legal rules governing commercial automatic decision-making algorithms.The second is the shift in the path of legal regulation.On the one hand,the legal regulation of commercial automatic decision-making algorithms should be promoted from "technology-neutrality" to "reviewing algorithm." On the other hand,the legal regulation of commercial automatic decision-making algorithms should be promoted from command-and-control path to cooperative-governance path.The third is the innovation of measures.We can start from two levels of consumers’ algorithmic rights and regulators’ regulatory measures.At the level of consumer rights,consumers should be given the right to request algorithm interpreted and the right to object to algorithms and to strengthen consumers’ right to education.At the level of regulatory measures,it should rely on the virtual sandbox to build an algorithm review and access system and introduce and create a code regulation system.Finally,through the all-around improvement and perfection of the system,path,and measures,the system optimization of the legal regulation of commercial automatic decision-making algorithms should be realized.