Three Laws Blog: Law and Artificial Intelligence

Brkan on Freedom of Expression and AI: On Personalization, Disinformation, and (Lack Of) Horizontal Effect of the Charter @MajaBrkan

Maja Brkan, Maastricht University Faculty of Law, has published Freedom of Expression and Artificial Intelligence: On Personalisation, Disinformation and (Lack Of) Horizontal Effect of the Charter. Here is the abstract.

The question whether the use of Artificial Intelligence can interfere with the freedom of expression and information has attracted a considerable amount of attention on both sides of the Atlantic. This paper contributes to this debate by questioning whether the Charter of Fundamental Rights of the EU can be considered as an appropriate instrument to solve this tension – a perspective which has hitherto been neglected in the doctrine. The paper argues that the freedom of expression in an online environment can be endangered through the use of machine learning for personalisation, demotion of fake news (disinformation), automated blocking of illegal content and automated enforcement of the right to be forgotten. However, the application of Article 11 of the Charter to these interferences faces insurmountable obstacles due to its personal scope of application. Given that the text of this provision prevents only interferences by public authorities and thus seems to expressly exclude those by private companies such as (social) media, it is questionable whether the Charter can prevent such interferences at all. Indeed, the Charter in principle protects the citizens only against actions of public authorities (vertical direct effect) and not against other private entities (horizontal direct effect). Despite the recent recognition of horizontal direct effect of non-discrimination, effective judicial protection and the right to paid annual leave in Egenberger and Bauer, this paper argues that a similar conclusion cannot be made for freedom of expression and information. In the absence of comprehensive EU secondary legislation on freedom of expression which could compensate for such a lack of horizontal effect, citizens seem to be left without adequate protection of their rights in cases of unjustified removal of content wrongfully labelled as disinformation or illegal. This calls for further legislative action on the level of the EU.

Download the article from SSRN at the link.

Kirley on The Robot as Cub Reporter: law's Emerging Role in Cognitive Journalism @kirleez

Elizabeth Kirley, Deakin University Faculty of Business and Law, is publishing The Robot as Cub Reporter: Law's Emerging Role in Cognitive Journalism in volume 7 of the European Journal of Law and Technology (2016). Here is the abstract.

Today's journalist is immersed in news production that no longer treats robot-written news as a mere reference tool. Major news corporations are reshaping the journalism business to reflect the increasingly dominant role of algorithms and its consequent decrease in human curation. With data so integral to today's news storytelling and the arrival of machines that are learning to 'sense, think and act' like their creators, we are called to deliberate on the legitimacy of law to address human risks and responsibilities when humans are harmed physically, socially, financially or professionally. This paper argues that we are entering the age of cognitive journalism that affects the legal personhood question and examines policy initiatives on both sides of the Atlantic for legal norms to inform a law for machines that learn from mistakes and teach other machines. Legal issues raised by driverless cars, human cloning, drones and nanotechnology are examined for what they can offer to an emerging law of the robot. The paper concludes with a call for research that will bring a more nuanced understanding of the legitimate place of law in cognitive journalism.

Download the article from SSRN at the link.

Can AI Ferret Out Fake News?

For Forbes, Harold Stark examines whether the rudimentary nature of AI can determine whether a news item is badly written, or just misleading, or intentionally deceptive.  He summarizes the current developmental state of AI, and decides that by itself, AI just isn't sophisticated enough yet to make such decisions. There's still room for editors, journalists, and the critical eye of the informed reader. More here.

Massaro and Norton on Free Speech Rights and AI

Toni M. Massaro, University of Arizona College of Law, and Helen L. Norton, University of Colorado School of Law, are publishing Siri-ously? Free Speech Rights and Artificial Intelligence in volume 110 of the Northwestern University Law Review (2015). Here is the abstract.

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication "ours" versus "theirs." This, in turn, invites questions about whether the First Amendment ever will (or ever should) protect AI speech or speakers even absent a locatable and accountable human creator. In this Essay, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity doctrine suggests that speaker human-ness no longer may be a logically essential part of the First Amendment calculus. We further observe, however, that free speech theory and doctrine provide a basis for regulating, as well as protecting, the speech of nonhuman speakers to serve the interests of their human listeners should strong AI ever evolve to this point. Finally, we note that the futurist implications we describe are possible, but not inevitable. Indeed, contemplating these outcomes for AI speech may inspire rethinking of the free speech theory and doctrine that makes them plausible.

Download the article from SSRN at the link.