Alla känner apan: En analys av förhållandet mellan profilbaserad marknadsföring och 36 § avtalslagen

Sammanfattning

In today’s digitalized society, consumer information plays a key role in commercial practices. Through the collection and analysis of such information, businesses come closer to their consumers than ever before, and are able to tailor offers and interactions to the unique habits and personality traits of individuals. A particularly important technique for the processing of this information is digital profiling. Digital profiling offers many opportunities, but also comes with significant challenges and risks. The technology allows businesses to gain insight into the unique vulnerabilities of individual consumers – something that, through targeted marketing, can be used in ways that challenge the boundary between acceptable business practices and outright exploitation. This text examines to what extent marketing based on consumer profiling may be considered within the framework of paragraph 36 of the Contracts Act’s assessment of fairness. To achieve this, it first outlines the meaning and application of profiling. It then clarifies the underlying objectives of paragraph 36, as well as the relevant criteria used in the assessment made under the paragraph. The analysis concludes that profile-based marketing, in cases where it exploits consumers’ more acute vulnerabilities, may fall within the scope of paragraph 36. Contracts resulting from the type of marketing in question can be regarded as outcomes of an exploitation of unequal bargaining positions, and the marketing likened to surprise tactics. The final discussion also addresses the court´s decision in case PMT 4156-21, in which a large number of contracts between a gambling company and one of its consumers were declared invalid due to the company’s possession of consumer data. The court’s rejection of paragraph 36’s applicability in this case is criticized. The text further argues that the use of automated decision-making in profile-based marketing does not preclude the application of paragraph 36 of the Contracts Act.