2. nd IFTTA Europe Workshop “ Tourism and New Technologies: A New Age for Travel Law? ”

1. 2.nd IFTTA Europe Workshop “Tourism and New Technologies: A New Age for Travel Law?” Manuel David Masseno Palma de Mallorca, April 2.nd 2009 Protecting Travellers While Dealing with (Software) Agents

2. Protecting Travellers While Dealing with (Software) Agents Current European Legal Framework: Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce') Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours With a common background: Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

3. Protecting Travellers While Dealing with (Software) Agents Regarding consumer contracts, the 'Directive on electronic commerce relies on “Interactive Contracting”: Also in this context, Law is regarded as a technical device designed to accelerate and provide stability for Business practices (as in order or negotiable instruments and, mostly, in adhesion contractsand vending machines), therefore these rules shall not apply toindividually negotiated terms (Art. 11.3) being assumed that we are always before standard form contracts (Art. 10.3)

4. Protecting Travellers While Dealing with (Software) Agents Therefore, we need to focus on the European regulations regarding standard form contracts (Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts) It only applies to those terms that the consumer was not able to influence: “1.A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. 2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.”(Art. 3.)

5. Protecting Travellers While Dealing with (Software) Agents As main traits of this legal discipline we have that: The excluding criterion is individual negotiation, so Its essential to clarify the meaning of “negotiation” Being it’s basic trait is the possibility of influencing the substance of the term; and no effective influence is required, for instance through an actual change of a term drafted in advance or a concession made by the other party; However, the simple chance of negotiation is not enough, being the supplier available to start such procedure, an actual negotiation had to happen.

6. Protecting Travellers While Dealing with (Software) Agents As a first conclusion: “taylor-made packages” are left outside the range of most of the consumer protection rules of, both, the Directives on electronic commerce and on unfair terms in consumer contracts Anyway, consumers are not left in the wild, as some protection is still provided by Council Directive 90/314/EEC of 13 June 1990 on package travel, following Club-Tour / Gonçalves Garrido ratio decidendi (ECJ Case C-400/00, 30 April 2002)

7. Protecting Travellers While Dealing with (Software) Agents And what if the trader negotiates by the means of an Intelligent Agent (IA)? Plainly speaking, an IA is a computer program which reacts autonomously to changes of their environment and solve it’s task as far as possible independently “[…] a computer program, or electronic or other automated means, used by a person to initiate an action, or to respond to electronic messages or performances, on the person’s behalf without review or action by an individual at the time of the action or response to the message or performance.” (UCITA - Uniform Computer Information Transactions Act (2001) - USA)

8. Protecting Travellers While Dealing with (Software) Agents As generally considered, IA’s main features are: Reactivity (the ability to perceive an environment and respond to changes that occur with it); Proactivity (the ability to initiate goal-directed behaviour); Autonomy (the ability to operate without the direct intervention of humans or others, and have some kind of control over their action and internal state); Social ability (the capacity to interact with other intelligent agents or with human beings through a shared value); Adaptive behaviour (the ability to adjust to the habits, working methods and preferences of a user); Mobility (the ability to move around an electronic environment).

9. Protecting Travellers While Dealing with (Software) Agents However, IA are not “Agents”as, at least until now, they have not the status of legal persons, in any jurisdiction So, by the means of imputation, all acts performed by an IA are binding to the person that put it in place, being the IA a Messenger (Nuncius), since it just conveys a person’s declaration of intention Therefore, the user is fully bound for everything done by the IA, even by unexpected communications because it is theoretically possible that the Program would produce them

10. Protecting Travellers While Dealing with (Software) Agents Regarding the 'Directive on electronic commerce’, As stated at the ‘Executive Summary’ of the Proposal text “Member States will […] not prevent the use of electronic systems as intelligent electronic agents” Besides, “Member States shall ensure that their legal systems allows contracts to be concluded by electronic means. Member States shall in particular ensure that legal requirements applicable to the contractual process neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effectiveness and validity on account of their having been made by electronic means.” (Art. 9.1)

11. Protecting Travellers While Dealing with (Software) Agents Also, the UNCITRAL model law on electronic commerce (UN General Assembly Resolution 51/162 of 16 December 1996) goes the same way, even more clearly: Art. 2 provides that the originator of a data message includes both “[…] a person by whom or on whose behalf a message is purported to have been sent”, adding the “Article-by-Article Remarks” that “[..] data messages that are generated automatically by computers without direct human intervention are intended to be covered by subparagraph (c)”; and Art. 13.2 (b) attributes the operations of electronic devices to the person who originates the data message “[…] if it was sent by an information system programmed by, or on behalf of, the originator to operate automatically.”

12. Protecting Travellers While Dealing with (Software) Agents In economical terms, the costs of retrieving information (Search Agents) and performing contracts (Contract Agents) are dramatically reduced. Therefore, all contracts might be individually negotiated as in pre-modern times and the consumer protection regulations based on the control of mass contracting tend to become void. So what’s the alternative, given the “[…] high level of consumer protection […]” granted by Art. 153.1 EC Treaty, also restated at Art. 38 of the Charter of Fundamental Rights of the European Union?

13. An answer might be found at Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices This legal discipline is based on the concept of “unfair commercial practices harming consumers' economic interests” (Art 1.1 and 3.1) According to Art. 5, “A commercial practice shall be unfair if: (a) it is contrary to the requirements of professional diligence (id est, the […] standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader's field of activity)” Protecting Travellers While Dealing with (Software) Agents

14. Protecting Travellers While Dealing with (Software) Agents “(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.” Regarding contracts performed byIA, relevant are “misleading actions” (one that “[…] contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct […]”) (Art. 6 and 7)

15. Protecting Travellers While Dealing with (Software) Agents Besides, this is a maximum harmonisation (Art. 3.1 and 5 and Art.4) and, explicitly, horizontalDirective (Art. 3.4) Therefore, the programming of IA able to perform legally binding contracts within the Internal Market will depend on the inclusion of Good Faith criteria, not just objective Good Faith but also subjective Good Faith And, as a matter of fact, these criteria have already been implemented, for instance, in robotic football, where “fair play” is a basic requirement. Thank You!