ONLINE LAW
Consumers of Legal Services in a Onlife World TANIA LEIMAN, ASSOCIATE PROFESSOR & DEAN OF LAW, FLINDERS UNIVERSITY
“V
irtually everyone has a smartphone in their pockets, connecting them to just about every aspect of their lives… a device that”s always on and always connected”1, no longer any dichotomy between online and offline.2 This “onlife” is our “new experience of a hyperconnected reality”.3 We connect, shop, bank, access government services, pay tax, socialise, consume news and current affairs online. We expect to be able to purchase products customised to our characteristics and preferences “when [we] want, how [we] want”,4 with “self-service tools that empower [us] to find quick answers on [our] own,” and “when [we] do need more personalised help, [we]”re not apt to wait on hold.”5 We interact regularly with automated services (often without even being aware they are automated), and “major decisions that shape our lives – whether or not we are offered employment, a mortgage, insurance, credit, or a government service” are increasingly made via “automated eligibility systems, ranking algorithms and predictive risk models” with claims of greater efficiency and accuracy. 6 Automated tools resolve disputes online too.7 Each onlife interaction generates behavioural data which in turn predicts future behaviour and fuels the value of the platforms8 which give us which access to each other and make us “legible” or visible to those “seeking to market goods and services” to us. 9 “Platforms - including online marketplaces, desktop and mobile computing environments, social networks, virtual labor exchanges, payment systems, trading systems, and many, many more – have become the sites of ever-increasing amounts of economic activity and also of ever-increasing amounts of social and cultural activity [reshaping] work, finance, information transmission, entertainment, social interaction, and consumption of goods and services, and [destabilising] the locally embedded systems that previously mediated those activities in many different
10 THE BULLETIN February 2020
types of communities.”10 We accept cookies, divulge personal details, sacrifice privacy and agree to detailed terms and conditions online (usually without reading them) as part of a Faustian bargain of convenience enabling our access to abundant free information 24 hours a day, now raising wide concerns about surveillance and privacy.11
SEARCHING ONLINE A common first step when encountering a problem in this onlife world is a search online – an estimated 6+ billion Google searches were processed per day in 2019, 12 each generating yet more valuable data. Search engines crawl, index and rank via relevance all available content on the internet.13 Sophisticated search engine optimisation (SEO) functions locate and rank content as relevant. 14 Messaging applications interact with consumers enabling further personalisation in information provided. Increasingly such applications are powered by chatbots working independently from humans, responding to human queries “based on a combination of predefined scripts and machine learning applications” via text messages to specific commands (“rule-based chatbots”) or to natural language queries (“artificial intelligence chatbots”).15 The more sophisticated the underlying software and the more data it can access, the more complex the chatbot can be16 - and software is developing fast, with data gathering increasing even faster.17 Many businesses now use scaleable, affordable, cloud-based software to provide personalised information or auto-filled documents via their websites – all conveniently accessible to consumers 24 hours a day without the need to travel or call. Rapid developments in machine learning and natural language processing tools promise even greater capacity to review and compare documents, customise, personalise, anticipate needs and desires, predict behaviour and suggest solutions.
THE LANDSCAPE HAS CHANGED The legal information landscape has “irrevocably changed” too.18 Introduction of electronic resources in 1970s and commercialisation of those resources in the 1980s changed the way lawyers accessed the law but remained largely out of reach to the public. The arrival of CD ROMs in the early 1990s was overtaken by “advances in the World Wide Web [which allowed] publishers to provide online access to their publications.”19 “Since the mid 1990s, there has also been a strong move to unlimited free web access to legal materials across the globe” (e.g. AustLII, BAILII). 20 Public sector agencies and private enterprises now routinely provide extensive legal information for free via publicly accessible websites. Legal tech has blossomed across jurisdictions and across the cost spectrum, including “specialised standalone technologies, such as legal chatbots, apps and virtual assistants; enablers of legal advice such as legal automated drafting, legal document review and legal algorithms; further enablers of legal advice such as legal data analytics and predictors, and legal artificial intelligence; automation of legal advice with truly smart contracts; and sets of [automated legal advice technologies] enabling NewLaw business models and legal technology companies.”21 Tech-enabled tools are fuelling commodization22 and productization23 - reframing what were traditionally services into products sold online more cheaply to multiple users in high volumes.24 Services traditionally provided by lawyers (e.g. wills, agreements, other legal documents) are increasingly reframed as customisable products – for fixed fees (often low or no cost), available instantly. Even courts are moving online.25 Despite the hype, so-called “smart contracts” hosted on a blockchain, where “code is the only valid expression of a contractual agreement between the parties”26 are not yet widely in use. By contrast, “e-contracts” (with “computable parts such as data fields, rules and
