This article by Doug Sarro, University of Toronto, originally appeared on Conversation and is republished here with permission.

When new innovations emerge, there’s always a temptation to say rewrite the rulebook for them. Gamification was no exception.

Gamification refers to the use of game elements, often through a smartphone app, to make ordinary activities like stock trading or carpooling more engaging. It can have powerful influences on our choices, sometimes in controversial ways.

For example, users of gamified trading apps like Robinhood have suffered huge losses, often by trading too frequently and making outsized bets on meme stocks or other assets too risky for them.

By designing their interfaces to make stock trading more like a game, were these apps directing their users into dangerous trading patterns?

Regulators are looking into this issue. A March 2022 consultation paper from the board of directors of the International Organization of Securities Commissions (IOSCO) discusses whether certain gamification tactics should be banned.

The role of gamification in on-demand work has also raised legal questions. Gig workers seem to act a lot like employees, likely in part because of the gamification tactics apps use to influence how, where, and for how long they work.

But instead of following a growing number of courts and tribunals in Canada and abroad confirming that these workers should be treated as employees, the Ontario government is proposing that they be subject to a complex new framework that would give them some, but not necessarily all, of the rights associated with employee status.

The challenge of gamification to the law

As noted in a report I worked on for the Future of Law Lab at the University of Toronto, legal decision makers are struggling with gamification. This challenges the distinction they have traditionally drawn between persuading people with information – which preserves their freedom of choice – and taking that freedom away from them through coercion or deception.

It’s also possible to capture a degree of control over people’s choices by carefully structuring and timing the way you give them information in a way that exploits the mental shortcuts we all take when making decisions. Well-timed push notifications, popular stock rankings, and arbitrary goals assigned to gig workers can all take advantage of these shortcuts to guide users to choices that make apps money, but might not serve. the interests of users.

Traditional advertising does too, of course. But unlike a billboard or TV ad, a smartphone app follows us everywhere. It can also continuously test prompts and interfaces to identify which ones best nudge us in the desired direction.

Some say that existing rules are not enough to manage gamification – that we need new ones to mitigate the influence of gamification on our choices. For example, during a virtual hearing for the U.S. House of Representatives Financial Services Committee, economist Vicki Bogan called for a ban on user interface features in trading apps that are “designed to increase transaction volume without regard to consumer priorities or risk”. As indicated above, IOSCO is considering similar measures.

Others say that the existing rules do too much – that they fail to recognize that while gamification influences our choices, those choices are still technically ours. To avoid stifling innovation, apps need their own bespoke set of rules, like Ontario’s proposed gig worker regime.

Take advantage of the flexibility of the law

Both types of argument overlook the flexibility inherent in the law. We can interpret the old rules in new ways to reflect the reality that gamification and other digital engagement tactics can have a powerful influence on people’s behavior – and that influence can be wielded in perverse ways.

Instead of crafting new rules for designing trading apps, regulators can treat gamification tactics that push users toward certain investments or trading patterns as tacit investment recommendations. To the extent that these tactics work to guide clients into inappropriate investments and transactions, regulators can take action with their existing rules.

Rather than creating a new category of rights for on-demand workers, we can recognize that on-demand workers who are tricked into acting like employees, whether through gamification or other tactics, should be treated as such. Fortunately, Ontario’s proposals do not preclude ongoing efforts to secure these rights through litigation.

Innovation and regulation

Asking for new rules before fully using the ones we have isn’t just pointless. It is potentially harmful. If we choose to interpret existing rules rigidly or technically, so that we have to create new rules for every new innovation, we will never catch up. As the law increasingly lags behind innovation, those who use technology to implement creative schemes to evade regulation will prevail.

Gamification can do a lot of good, when deployed responsibly. This can make investing less daunting. It can motivate users to learn new languages, new skills, or healthier habits.

But apps shouldn’t be able to profit from training their users’ choices through gamification and then disclaim responsibility for those choices when regulators knock on the door.

The law has tools to encourage applications to responsibly exercise the influence they exert on the choices of their users. We just need to use them.

Doug Sarro, SJD Candidate and Adjunct Professor, Law, University of Toronto

This article is republished from The Conversation under a Creative Commons license. Read the original article.