A Matter of Perspective

The challenge presented is an age when some decisions are made by humans, some are made by AI, and some are made by a combination of AI and humans. For the person refused housing, a phone service, or employment, the experience is the same, but the ability to understand what has happened and obtain a remedy may be very different if the discrimination is attributable to or contributed by an AI system. If we are to preserve the policy intentions of our discrimination, equal opportunity, and human rights laws, we need to understand how discrimination arises in AI systems; how design in AI systems can mitigate such discrimination; and whether our existing laws are adequate to address discrimination in AI. This chapter endeavours to provide this understanding. In doing so, it focuses on narrow but advanced forms of artificial intelligence, such as natural language processing, facial recognition, and cognitive neural networks.

Reforming Australia's Safe Harbour for Internet Intermediaries

The internet safe harbour created by section 230 of the Communications Decency Act has been described as one of the laws that built Silicon Valley. Australia does not have an equivalent law. The closest available is clause 91(1) of schedule 5 of the Broadcasting Services Act 1992 (Cth) (BSA Immunity), a law described by the NSW Department of Justice as of limited ‘utility'. The purpose of this chapter is to conduct a comparative analysis of section 230 and the BSA Immunity. On the one hand, the chapter seeks to outline how section 230 has helped develop some of the world's most successful platforms while, on the other hand, the chapter argues that the BSA Immunity's lack of utility has had a ‘chilling effect' on internet businesses in Australia. Following this comparison, the chapter discusses potential reforms to the BSA Immunity, which could assist in the development of future Australian start-ups.

Digital Death

An increasing use of social media platforms and other mobile applications (apps) has led to the creation, purchase, storage, and use of online information and data including personal or financial information, email communications, photographs, or videos. The purposes of this chapter are to discuss digital property and to determine whether under estate planning and administration law digital property can be inherited like other real and personal property. This chapter will examine relevant legislation in Australia, United States (US), and other jurisdictions including Canada, as well as legal cases that have discussed the issue of accessing or transferring digital property held by service providers such as Facebook. It will also discuss examples of service providers' terms of use and whether these terms allow for digital property to be accessed by a third party. It will conclude with recommendations about how an individual can manage their digital property as part of their will or estate.

Regulating AI

Artificial intelligence (AI) is already being used in many different sectors and industries globally. These areas include government (help desks, sending demand letters), health (predicative diagnosis), law (predicative policing and sentencing), education (facial recognition), finance (for share trading), advertising (social media), retail (recommendations), transport (drones), smart services (like electricity meters), and so on. At this stage, the AI in use or being proposed is ‘narrow' AI and not ‘general' AI, which means that it has been designed for a specific purpose, say, to advise on sentencing levels or to select potential candidates for interview, rather than being designed to learn and do new things, like a human. The question we need to explore is not whether regulation of AI is needed but how such regulation can be achieved. This chapter examines which existing regulations can apply to AI, which will need to be amended, and which areas might need new regulation to be introduced. Both national and international regulation will be discussed; Australia is the main focus.

Use of Big Data Analytics by Tax Authorities

This chapter provides a thematic analysis for the Australian context of the legality and challenges to the use of big data analytics to identify risk, conduct compliance action, and make decisions within the tax administration space. Recent federal court jurisprudence and research is discussed to identify common themes (i.e., privacy/opacity, inaccuracy/bias, and fairness/due process) currently influencing the legal treatment of big data analytics within the tax administration and compliance environment in Australia.

Smart Contracts

When Nick Szabo pioneered the idea of a smart contract in the 1990s, the economic and communications infrastructure available at that time could not and did not support the protocols needed to execute and apply smart contracts. While smart contracts may be viewed as an example of the use of blockchain and blockchain technology which offers great opportunities to the field of law; others are more sceptical. The use of smart contracts in law is anything but straightforward, but this should not deter jurists from investigating the opportunities this instrument offers. This chapter aims to provide an overview of smart contacts, explaining how they work, the ways they differ from written contracts, their legal status, and the advantages and disadvantages associated with using them. Finally, it identifies the main challenges facing businesses and the legal profession with regard to the expanding use of smart contacts.

The Regulation of Blockchain in Africa

Blockchain and blockchain technology have captured the imagination of the world. It is being used increasingly more in business and has found its way into the legal profession as well. Blockchain as such has immense potential and can certainly be extremely beneficial. However, since it is such a dynamic, innovative, and recent development, there is a need for regulation of this phenomenon. Regulation will bring more clarity, protection, and assurance. One of the main objectives of a blockchain, however, is to move away from centralised control, so the issue of regulation is a sensitive and complex one. Regulators and policymakers find it difficult to maintain the balance between effective regulation and allowing blockchain to fulfil its potential.

A Framework for Ameliorating Risk in Australian University Crowdfunding

Crowdfunding is a balance of risk versus reward. Crowdfunders take a public risk that they will fail to raise funds. Donors take the risk that the campaign will not be funded or that they will not see a return for their support. In an ideal world, both sides are rewarded through the development of something new. If the campaign is being run by a staff member at a large organisation, the organisation should consider a number of risks. These include legal risks such as corruption and misrepresentation, as well as reputational risks and risks relating to exploitation of staff. There is also the risk of funding foregone due to excessive caution regarding crowdfunding. This chapter uses universities in Australia as a case study to illustrate some of these risks. It analyses them through a framework for managing risk in business centric crowdfunding platforms. It contributes a new framework for ameliorating risk before, during, and after crowdfunding campaigns.

Robots

More and more often legal scholars notice that developments in robotics are becoming increasingly relevant from a legal point of view. This chapter critically assesses the current debate in the regulation of artificial intelligence (AI)-based robotics, whose scope should be seen as part of a wider debate that concerns AI. Indeed, what interests legal scholars are those robots that are able to act autonomously and intelligently, that is, robots embedded with AI. The chapter looks at such robots from the twofold perspective: on the one hand, robot as a product (and therefore the chapter refers to consumer protection) and, on the other hand, robot as entity (and therefore it addresses robot rights). The chapter also includes a brief overview of some of the initiatives to regulate AI and robotics interpreting the nuances so as to extract some ideas on national priorities in this regard.

Enforceability of Contract Terms Displayed on Social Media

It is a prerequisite for the use of virtually any social media that the user enter into a contract with the provider. Typically, the user is required to click “OK” or “I accept” at the foot of a lengthy set of online terms and conditions. Sometimes contracts of this nature are described as “clickwrap” or “browsewrap” agreements. Given that a majority of users will typically not read the terms and conditions or, if they do, will feel they have no option but to accept them, and given further that service providers are aware that this is the case, the question arises as to whether and to what extent such terms and conditions are, or should be, in fact, legally enforceable. This chapter explores relevant Australian and overseas case law and commentary dealing with this modern social media legal phenomenon.