Surfing the Third Wave of Computing : Consumer Contracting With eObjects in Australia

A ‘third wave’ of computing is emerging, based on widespread use of processors with data handling and communications capabilities embedded in a variety of objects and environments not previously computerised, such as refrigerators, buildings, cars, fitness trackers and hairbrushes. With the ensuing sociotechnical change the possibility arises of a ‘regulatory disconnection’ between current consumer protection law and new things, activities and relationships brought about by the third wave. This third wave has had many names, including ubiquitous and pervasive computing, ambient intelligence and the Internet of Things. However, significant definitional inconsistencies and incoherencies exist, necessitating the development in this dissertation of a technical research framework. This framework involves abstracting and analysing the attributes of, and interactions among, the technologies, and defining a unifying concept for the central technological element, the ‘eObject’. The dissertation proceeds to outline the categories of legal problems that can arise in the context of sociotechnical change, emphasising that not every instance of sociotechnical change operates outside the scope of existing legal rules. Therefore, new things, activities and relationships enabled by new technologies should first be judged against existing rules and their goals. The attributes and interactions of eObjects are then interrogated to identify where sociotechnical change associated with eObjects might lead to challenges for consumers. The challenges identified are ones whose outcomes are in conflict with the goals of Australian consumer protection law, potentially giving rise to legal problems. One of those identified challenges is examined in depth. Widespread digitisation of commerce has arguably given firms an enhanced ability not only to compile detailed customer profiles, but also to exploit consumers’ individual biases and vulnerabilities. This dissertation argues that opportunities for such ‘digital consumer manipulation’ will be substantially increased by the widespread use of eObjects. Provisions of the Australian Consumer Law (ACL) and related cases are examined to evaluate the effectiveness of Australian consumer protection law in the face of ‘digital consumer manipulation’ facilitated by eObjects. Legal problems with the ACL are identified; and some mechanisms for reconnection of consumer law with its goals and purposes are outlined and analysed. This examination allows for a ‘reflecting back’ on the utility of particular concepts and frameworks used in law and technology research