Preface

When I was in my early teens, I spent countless hours programming Commodore 64 assembly language. The codes were published in my column in a national computer magazine, IC RUN, and at the time I thought that I would earn my living as a programmer. My technical skills and technological curiosity were revitalised when I studied law in the period 1992–1997, which coincided with the transformative period when the internet had its popular and commercial breakthrough.

Since then I have come to realise that people, too, can be programmed (through psychology/marketing), and have explored the role that technology, much like a computer code, plays in designing our behaviour. While I was writing this preface it struck me that by becoming an educator, I have actually ended up earning my living as a programmer.

I remain fascinated by technology, including the social, societal and economic progress that it has to offer. However, growing surveillance and manipulation capabilities have made me question whether society benefits sufficiently from the democratisation of information that is spurred and facilitated by the internet. Similarly, learning about bounded rationality and persuasive technology has made me question whether data protection law and consumer protection law really deliver the empowerment and transparency they are meant to provide.

As lawyer and legal scholar, I have for more than two decades focused on the regulation of information, particularly in the context of marketing law and data protection law, without initially realising the now-obvious convergence between these two legal disciplines in the context of the data-driven marketing that is now a dominant revenue model for data-driven business models.

This book is about predatory business models that distort and manipulate human agency. The predatory aspects of these business models thrive in the modern information society, where technology is (also) used to observe and influence human behaviour. This is to emphasise that the negative aspects of technology I focus on stem from its application, and not from technology as such.

Writing this book has been a long process. It builds on and is reflected in most of the research listed under my name in the Bibliography. I am also pleased to have drawn inspiration from the other literature mentioned there. In line with legal traditions, I use footnotes allowing for expedient identification of references.

Most of the issues dealt with in this book are not new, but their importance is still growing. It is important for me to think of solutions to these challenges, and my main hypothesis is that most of the legal solutions presented in this book can be achieved by means of holistic and teleological interpretation of existing laws. I hope to inspire both the judiciary and the legislature, as well as other people with stakes or interest in the legal ecosystem.

My goal is to inform and amplify ongoing debates pertaining to data-driven business models by providing a coherent framing of data-driven marketing in the context of law, psychology, technology and society.

Being programmable is not the characteristic of human beings that sets us apart from other animals. With this book, I hope to also subtly emphasise the importance of social skills, which are best learned in interaction with other human beings—including through technological means—preferably without Big Brother (in whatever shape or form) as facilitator.

I look forward to discussing the ideas presented in this book with a view to building more robust arguments to ensure human dignity in markets and elsewhere. The book is meant as a source and inspiration for further research, including my own, and it is in itself a hypothesis that I hope will be debated and challenged.

Thank you for reading thus far. I hope that you will find your attention well spent and that this book will resonate with, challenge and inspire your adaptive chemical wiring.

Copenhagen and Gilleleje, November 2021

Jan Trzaskowski

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Acknowledgments

#thank you  #namaste

For the ideas present in this book, I remain indebted to those who have engaged over the years in thoughtful discussions and facilitated fora for that purpose, including kind invitations to universities around the world. In particular, I would like to thank: Jesper Clement, Torkil Clemmensen, Mateja Durovic, Jens Evald, Torben Fabrin, Mikkel Flyverbom, Graham Greenleaf, Corlia van Heerden, Michael Hopp, Henrik Lando, David Lindsay, Joasia Luzak, Alana Maurushat, Michael Platt, Kai Purnhagen, Lucia Reisch, Maria José Schmidt-Kessen, Cecilia Magnusson Sjöberg, Dan Svantesson, Marie Jull Sørensen, Doron Teichman, Carina Törnblom, Christina Tvarnø, Henrik Udsen, David Vaile, Roland Vogl and Erik Werlauff.

In that vein, I also want to express my gratitude to the many thousands of students, I have entertained and challenged at Copenhagen Business School and elsewhere. Thank you for your questions and inspiration and for acting as guinea pigs for my ideas.

My ambitions for this book were first presented as a coherent idea at the Copenhagen Business School in November 2017. Before and after that point, ideas for this book were presented, tested, discussed, rejected and developed at Danish universities and at the European University Institute in Florence, Hebrew University in Jerusalem, Stanford Law School, Stockholm University, Swinburne Technical University, The Wharton School at the University of Pennsylvania, the University of New South Wales and the University of Pretoria, as well as at conferences organised by the European Association of Law & Economics, the European Association of Psychology and Law, the Hawaii International Conference on System Sciences, the International Association of Consumer Law and the International Federation of Computer Law Association.

For valuable comments and discussions during the process of finalising this book, I wish to thank Samuel Becher, Eric K. Clemons, Hans-Wolfgang Micklitz, Maya Mitre, Peter Møgelvang-Hansen, Thomas Riis, Andrej Savin and Max Gersvang Sørensen. I owe thanks to Kate Gilbert for being a wonderful and thorough linguistic wingman and to Tara Brach for making meditation practice an easy and rewarding alternative to the use of distracting technology. I also wish to thank everyone at Ex Tuto Publishing for making the transition from bits to paper so frictionless.

The most important person to this book is you, the reader. I thank you for your interest in the subject and my writings. Your attention and willingness to decode the information is appreciated.

Last, but not least, I want to thank my friends and family for their love, patience and encouragement throughout a very long process. I owe a huge debt to my wife and kids, a debt that will be paid in some of our most important currencies: attention and meaningful interaction. I love you!

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Abbreviations

AI		Artificial Intelligence
Artificial Intelligence Act		Proposal for a regulation laying down harmonised rules on artificial intelligence1
Charter		Charter of Fundamental Rights of the European Union
CJEU		Court of Justice of the European Union
Commission Staff Working Document		Guidance on the implementation/application of the UCPD2
ECHR		European Convention on Human Rights
ECtHR		European Court of Human Rights
EDPB		European Data Protection Board
EDPS		European Data Protection Supervisor
ePrivacy Directive		Directive on Privacy and Electronic Communications3
EU		European Union
EU Treaties		Treaty on European Union, Treaty on the Functioning of the European Union, Treaty establishing the European Atomic Energy Community and the Charter of Fundamental Rights of the European Union
GDPR		General Data Protection Regulation4
MCAD		Misleading and Comparative Advertising Directive5
New Consumer Deal Directive		Directive on the better enforcement and modernisation of Union consumer protection rules6
TEU		The Treaty on European Union
TFEU		Treaty on the Functioning of the European Union
UCPD		Unfair Commercial Practices Directive7