A Contract Law Perspective on Manipulative Persuasive Technology Led by an Artificial Intelligence

Unperceived Artificial Intelligence (AI) can acquire users' data and find connections not visible to human beings, aiming at persuading them and resulting in Persuasive Technology (PT). PT can use computational manipulation (CM) to induce individuals to enter into a contract, affecting their decisional processes without their awareness and undermining their decision-making processes. Multiple institutions recognise that PT can manipulate individuals to an unprecedented degree via second-generation dark patterns such as the hypernudge, and that CM constitutes a risk for autonomy and other fundamental rights, such as the right to mental self-determination, which consists of the right to control the cognitive processes and the creation of thoughts. Contracts are already entered into due to CM, affecting individuals' mental self-determination. Contract law can protect individuals against many of the unlawful applications of PT in the contractual field. However, this thesis, using the English and Italian systems as case studies, argues that existing contract law doctrines fail to consider the kind of CM that affects the decisional processes of individuals without deception. CM can find and hypernudge a motive to contract, yet contemporary contract law considers the motive irrelevant. Therefore, significantly contributing to the knowledge in the field of CM and contract law, this thesis argues that the notion of consent in contract law, when an AI is involved in the manipulation process, should be reconsidered to include the motive. Moreover, this thesis argues that a contract resulting from CM should be invalid, in an intermediate form of invalidity between void and voidable, which this thesis identifies as para-void. If the motive becomes relevant and the contract resulting from CM is invalid, the right to mental self-determination can be protected by contract law against CM.