AI: Understand What's Ahead in Antitrust & Consumer Protection - McDermott Will & Emery

Key Takeaways | AI and the Next Frontier: Understanding What’s Ahead in Antitrust and Consumer Protection


During this webinar, Consumer Protection Partner Lesli Esposito and Antitrust Partner Hendrik Viaene discussed how AI impacts advertising and competition. They explored developments related to artificial intelligence (AI) enforcement and identified potential regulatory landmines companies may face while navigating the evolving AI landscape.

Top takeaways included:

  1. Accessing datasets: Companies can use AI to leverage their dominance from one market to another. With the rising need for data, specifically for training AI systems, access to these datasets becomes increasingly important. Companies must remain conscious of their practices involving data and their access to datasets in light of increased agency scrutiny of potentially abusive behavior.
  2. Making advertising claims: When making any advertising claims—whether express or implied—that your product is, relies on or utilizes AI, those claims must be true and have adequate substantiation. Companies cannot make general statements about AI and rely on an individual interpretation of what the claim means; they must rely on recognized definitions and have sound support for any statements made about AI and the product. Additionally, companies must avoid claiming a product is AI if it is not, exaggerating features or capabilities of AI products, and making false comparative claims regarding how an AI product might perform compared to a non-AI product.
  3. Using AI Fake: AI Fake is the use of AI to create synthetic media. It includes using AI tools to generate fake imaging, messaging or videos. When it comes to consumer protection, use of AI Fake can be illegal if used to change the material aspects of an endorsement, consumer review or any type of consumer outreach (e.g., deceptive imaging in customer reviews or voice alteration).
  4. Understanding collusion responsibility: Anticompetitive collusion or coordination can take place with the assistance of AI—e.g., AI can be used to create or monitor a cartel, or competitors can (un)knowingly use the same, or very similar, AI systems sometimes comprised of the same data set. Companies cannot escape liability for collusion by hiding behind AI systems that may have created explicit or allowed for implicit coordination.
  5. Reevaluating information-sharing policies: AI can be used to create more potent, and potentially harmful, information exchanges between competitors. Companies should reevaluate their information-sharing policies due to the rise of data aggregation, machine leaning and pricing algorithms, in addition to increased enforcement by the agencies.

Learn about AI’s implications in more industries and service areas, and how you can seize opportunities and mitigate risk across the legal, business and operational areas of your organization, through our webinar series.

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