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As much attention is turned to regulating AI systems to minimize the risk of harm, including the one caused by discriminatory biased outputs, a better understanding of commercial practices that may or may not violate anti-discrimination law is critical. This article investigates the instances in which algorithmic price personalization, i.e., setting prices based on consumers’ personal information with the objective of getting as closely as possible to their maximum willingness to pay (APP), may contravene anti-discrimination law. It analyses cases whereby APP could constitute prima facie discrimination, while acknowledging the difficulty to detect this commercial practice. We discuss why certain commercial practice differentiations, even on prohibited grounds, do not necessarily lead to prima facie discrimination, offering a more nuanced account of the application of anti-discrimination law to APP. However once prima facie discrimination is established, we argue that APP will not be easily exempted under a bona fide requirement, given APP’s lack of a legitimate business purpose under the stringent test of anti-discrimination law and given its quasi-constitutional status. An additional contribution of this article is to bridge traditional anti-discrimination law with emerging AI governance regulation, resorting to the gaps identified in anti-discrimination law to show how AI governance regulation could enhance anti-discrimination law and improve compliance.
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Price is often the single most important term in consumer transactions. As the personalization of e-commerce continues to intensify, the law and policy implications of algorithmic personalized pricing i.e., to set prices based on consumers’ personal data with the objective of getting as closely as possible to their maximum willingness to pay (APP), should be top of mind for regulators. This article looks at the legality of APP from a personal data protection law perspective, by first presenting the general legal framework applicable to this commercial practice under competition and consumer law. There is value in analysing the legality of APP through how these bodies of law interact with one and the other. This article questions the legality of APP under personal data protection law, by its inability to effectively meet the substantive requirements of valid consent and reasonable purpose. Findings of illegality of APP under personal data protection law may in turn further inform the lawfulness of APP under competition and consumer law.
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Price is often the single most important term in consumer transactions. As the personalization of e-commerce continues to intensify, the law and policy implications of algorithmic personalized pricing i.e., to set prices based on consumers’ personal data with the objective of getting as closely as possible to their maximum willingness to pay (APP), should be top of mind for regulators. This article looks at the legality of APP from a personal data protection law perspective, by first presenting the general legal framework applicable to this commercial practice under competition and consumer law. There is value in analysing the legality of APP through how these bodies of law interact with one and the other. This article questions the legality of APP under personal data protection law, by its inability to effectively meet the substantive requirements of valid consent and reasonable purpose. Findings of illegality of APP under personal data protection law may in turn further inform the lawfulness of APP under competition and consumer law.