Personalized
Media & Entertainment
November 30, 2017 ITech-Webinar
Dirk Spacek, Attorney at law, Dr. iur., LL.M.
– Features in the media landscape asking for personaliza- tion:
– Convenience: Consumers want content anytime, anywhere on de- mand on any device appropriate.
– No Loyalty to offeror: Individualized, content-focussed Customers.
– Short frame attention: Consumers show increased interest in short form video consumption.
– Personal engagement: Consumers are more open to interaction with content offerings (e.g. live participation, voting etc.).
– Abundancy of content: Lower willingness to pay for content.
– Privacy Paradox: Consumers are willing to share personal data easily.
Introduction
– Layers of personalization:
Personalization
AI: Smart Home assistant for conve- nient personal entertainment.
TV
Radio
Cinema
Events
How do I
entertain myself?
Personal Tool
Personal Content
Interactive Content (Personal Engagement)
Hi-Fi
Example 1: Personal tool as vehicle for personal entertainment (mobile device).
Issues:
Transparency: Who do I contract with?
Telecommunications.
Data Protection.
Telecommunications Surveillance.
Network Neutrality.
Copyright levies.
Helpline in relation to Infotainment Services.
Payment of share of hardware subsidy, activation
fee and revenue share
(commission) Introductory services Technology
Licence and Royalty Agreement 100%
Payment of hardware subsidy, activation fee and revenue share (commission) Payment of royalties
and payment for services
1) Engineering and IT support 2) Technology licensing
Agreement with TSP to provide Infotainment Services (broadly incorporating terms of WSA)
Wireless Services Agreement ("WSA")
100%
Communications Service Provider
(UK) Communications
Service Provider (USA)
Telecommunications Service Provider (US)
Payment for Infotainment
Services Infotainment
Services Agreement
Infotainment Services Mobile Network
Operator (CH)
Swiss resident individuals (the
"Subscribers")
Telecommunications Service Provider
(UK)
– Subscriber targeting (subscription models: CID).
– Anonymous targeting (website visitors: IP-Address).
– Instruments:
– Identificators and Algorithms generate «user profiles» and «recom- mendations».
– Content-based recommendations.
– Purchase-based recommendations (from other consumers’ purchases).
– Relevancy-based recommendations matched with consumer parameters.
– Other instruments: Gifts, follow-up-e-mails, pre-orders, third-party- cookies… etc.
– Big Data Analytics (user-data-collection and «matching»
to predict habits on personal entertainment).
Example 2: Personalized content (target-
ting).
– Issues:
– Data Privacy.
– Anti-SPAM-statutes?
– SPAM: Mass communication statutes vs. personalized/individualized content.
– Unfair competition law statutes («misleading practices»).
– Constitutional Law (freedom of information).
– Public Broadcasting law.
Example 2: Personalized content (target-
ing).
– Culture of Consumer Participation and Engagement.
– Video Games & Personal Avatars.
– Crowdsourced/user-generated content.
– Music sharing platforms.
– Talent contests (public to vote).
– Issues:
– Data Privacy.
– Rules on customer’s input «sharing».
– Intellectual Property Strategy (Trademarks: Adjusting content for every interactive customer vs. strong and independent brand).
– «Amateur Content» vs. «Professional Content»: Remuneration.
Example 3: Interactive Entertainment
(Personal Engagement).
Example 4: AI: Smart Home Devices as
catalists for personal entertainment.
– «Smart Home Devices»: Household appliances connected to and managed by an «AI-housekeeper» serving a resident’s needs with personalized services.
– Example: Amazon Echo (Alexa: Digital voice-controlled assis- tant interfacing with internet-based entertainment services and can execute further «skills»):
– More AI-Functions for smart homes imaginable in the future.
– Issues:
– Data Privacy.
– AI-Contracting (AI-Decisions and Contract Law?).
– Product liability issues.
Example 4: AI: Smart Home Devices as
catalists for personal entertainment
– Data Privacy.
– Telecommunications Law.
– Intellectual Property Law.
– Contract Law.
– Product liability/security law.
– Unfair competition law.
– Public broadcasting law.
– Constitutional Law (freedom of information).
Legal Impacts Summarized.
– European Data Protection Directive 95/46 EC will be succeeded by the European General Data Protection Regulation («GDPR»).
– Extra-territorial scope;
– Accountability of data controllers and data processors;
– Risk based approach;
– Records of data processing activities;
– Consent requirement for data processing: Freely given, specific, informed and unambiguous;
– Data breach notifications;
– Extensive rights of data subjects;
– Designation of representative in the EU;
– Designation of (independent) data protection officer;
– Conducting privacy impact assessments;
– Violations of GDPR can be sanctioned with fines up to EUR 20’000’000 or 4% of last world-wide annual turnover (whichever is higher).
Legal Considerations: Data Privacy (1)
– Challenge for personalized entertainment: Informed User Consent.
– Informed: All relevant information must be provided in a «concise, transparent, easily accessible, intelligible form with clear and plain language».
– Consent: «Freely given, specific, informed and unambiguous indication of the data subject’s wishes… by statement or by a clear affirmative action» (Art. 4 para. 11 GDPR).
– Impact:
– More relevant information on processing activities. → Longer privacy policies→ Clearer to understand?
– Personal data matched from different sources: Data subjects must be provided with information on the source (Art. 14 GDPR).
– Silence, pre-ticked boxes or inactivitiy will no longer suffice to establish consent.
– Pre-formulated consent declarations included in written declarations concerning other matters must be presented in a manner clearly set apart/distinguishable from other content (Art. 7 GDPR).
– Provision of services may not be conditional on consent to data processing, if not necessary for contract performance.
Legal Considerations: Data Privacy (2)
– Data processing justifications for personalized enter- tainment (without consent)?
– If «necessary for the performance of the contract» (Art. 6 (1) b) GDPR):
– Recommendation engines predicting user’s interest for a product or helping to reduce information overload (tailored news)?
– «Legitimate and overriding interests by controller or third par- ty». GDPR mentions direct marketing as legitimate interest (Recital 47 GDPR).
– Which personalization tools could be considered as «direct marketing» (e.g. targetted advertising)?
– Data subjects can still object to direct marketing (opt-out [e.g. by unsubscribe link]). No enduring legitimate and overriding interest.
Legal Considerations: Data Privacy (3)
– Amazon Echo: What is Alexa doing?
– Device: Manually activated/speech acti- vated/always on.
– Speech recognition (Voice based execu- tion of orders).
– Skills: Playing of Music, setting timers, admin of calendars. («Alexa play music»
«Alexa, which appointments do I have today?»).
– Voice recognition (voice prints stored in
Amazon Cloud, identifying biometric fea-
Legal Considerations: AI-Assistant in
Smart Homes (1)
– Consent requirement and purpose limitation: Data Privacy for AI-Devices like «Alexa» call for measures:
– Device control (privacy by design):
– Default setting off, active confirmation to switch on speech recognition functions.
– Option to disable microphone completely.
– Visual signals for indication microphone is on (red/green).
– Ex post control: Access to uploaded audio commands/delete audio files and text transcripts.
– Voiceprints: Biometric identification of individuals under data privacy statutes (privacy by design).
– Unlink/anonymize audio files from biometric information for cloud processing.
– Option for customers to not consent/remove voice recognition data completely.
– Are biometric features necessary for contract performance?
Legal Considerations: AI-Assistant in
Smart Homes (2)
– AI-Device decision. What about poor AI-decisions?
(recording tv-content at the wrong time, downloading wrong videos, switching off light at the wrong time)?
– Does AI have legal personality when contracting?
– Usually, decisions are triggered by human users (extended arm);
– However, AI has the potential to analyse the need of users and make decisions for them (see e.g. high frequency trading software);
– Working on behalf of human users: principal-agent?
– Legal personality for «strong» AI-systems, but not «weak» ones?
– AI: Limited intelligence: «Babies»?
– Future law: Limited legal capacity (like minors)?
Legal Considerations: AI-Assistant in
Smart Homes (3)
– User Profiling and Recommendations create personalized content.
– Proponents: Welcome development, since
– increased amount of information and incapacity of traditional media providers to select relevant information for customers; and
– optimization and streamlining of service delivery processes.
– Critical Thinkers:
– CASS SUNSTEIN, Harvard Law School: «Echochambers», «enclaves of li- ke-minded».
– ELLI PARISER, Internet-Activist: «Filter Bubbles».
– People only get to hear what they like to hear. Makes it easy to seal oneself off from other views and fosters extreme opinions. Fragmentation of society? Threat to de- mocracy which is based on equal access to public information and open discussions?
Legal Considerations: Constitutional Law
(Freedom of information) (1)
– Impact on Public Broadcasting:
– Art. 93 para. 2 Federal Constitution of the Swiss Confe- deration: “Radio and television shall contribute to
education and cultural development, to the free shaping of opinion and to entertainment. They shall take account of the particularities of the country and the needs of the Cantons. They shall present events accurately and allow a diversity of opinions to be expressed appropriately”.
– “Service Public”-Task of Swiss Public Broadcaster SRG SSR.
Legal Considerations: Public Broadcating
Law (2)
– ADMEIRA:
– Joint Venture between SRGSSR, Swisscom (Swiss national Tele- communications Service Provider) and Ringier (Large Swiss Pu- blishing Editor).
– Controversial under Swiss Law:
– Telecom User Data shared with SRGSSR. Opportunities for SRGSSR to use Big Data Analytics and personalize advertising and editorial content to vie- wers.
– Distortion of competition.
– 14. December 2015: Swiss Competition Commission approved Joint Venture.
– Complaint pending with Swiss Federal Supreme Court as regards incompatibility with «Service Public».
