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Mercantile (commercial) diligence in personalized advertising communication to the consumer through artificial intelligence

By: Dr. Camilo Alfonso Escobar Mora ©

Founder of JURÍDIA – Learning and Research Center for Preventive Consumer Law in Digital Advertising

www.juridia.co

 

 

Introduction

 

In the theory of preventive consumer law in digital advertising (created by the author of this writing) the diligence (commercial) is the form (way) to make advertising valid. Properly: it is the form to make valid juridical (including: legal) acts that make a valid (valid) digital business advertising. That is to say: it is the form to make valid business digital advertising. Then: the company must be diligent in foreseeing and making the advertising communicated to the consumer valid.

 

This article explains the basics of that diligence. Focused on personalized advertising for the consumer.

 

 

Development

 

Advertising is a juridical act of the company. It is a unilateral juridical (including: legal) act. Because: (only) is made by the company. Another thing is that the consumer makes juridical acts (extracontractual and / or contractual, according to the case) related to advertising. And: another thing is that the company and the consumer, in addition to their individual acts, make collective juridical acts (bilateral and / or multilateral, extra-contractual and / or contractual, according to the case) related to advertising. Therefore: the company defines its advertising (the advertising that is communicated on its behalf or in its representation) and responds to the nature, content and scope (effect) it has. Then: it (the company) must be diligent in defining it and doing it in a valid form (way). That is to say: must define it, make it and attend it (attend to its effect) in a diligent form.

 

Properly: advertising can be created and / or communicated by the company or on behalf of the company. The commercial diligence is the diligence that applies to the company. Properly: to the mercantile (commercial) company. It consists of acting in a professional manner in the market involved. That is to say: in the market of the company. This means that the company responds for what it is (is) foreseeable under its (juridical) professional profile (of a physical —natural— or moral —juridical— professional person, according to the case) in its market (profile that is defined according to the case, in the case and tailored to the case). Therefore: it (the company) must foresee and make valid digital advertising. Properly: it must foresee and make valid business digital advertising.

 

Then: it (the company) must foresee the form and effect of its (digital) advertising. That is to say: it must foresee the (juridical) nature, content and scope of its advertising. And: it must make that nature, content and scope valid (juridically). That is to say: it must make the form and the effect of advertising valid. It must make the valid form and the valid effect. In fact: its form includes its effect. Therefore: it must make its valid form. Properly: it must make the advertisement valid. Then: if its form is valid (which includes its fund) its effect will be valid.

 

The decisive thing is that it (the company) foresees and makes a valid form. That is to say: a form (the form of advertising) that makes its nature, content and scope (in general: in a form that makes its being —that the being of advertising, that being advertising—) be valid. What it means: a form that is harmonious with the law (the law —law— means: the philosophy of law, the theory of law and the rules —in general: norms— of the Rule of Law involved in the case that are harmonious with that philosophy and theory —not with a philosophy and / or theory of law but with the philosophy and theory of being called law, being that defines the juridical must be, including: the duty to be juridical, that must be other beings to be juridically valid—). That is to say: with the form in which the law (law) proceeds.

 

Properly: with the form in which the law (law) proceeds to it (to the advertising). With the form in which the law proceeds to its being. That is to say: with the form in which the law proceeds to the being of advertising. To advertising as a being (that is). To the being called advertising. Being that is defined according to the case. That is to say: the nature, object and scope of its being are defined according to the variables it have in the case. Its nature, object and scope are defined according to the case. And: its being (the being —the advertising—) is valid if it coincides with its (juridical) must be. That is to say: if it coincides with the form in which the law proceeds (applies) to it.

 

Properly: (the) being (advertising) is valid (it is valid) if it coincides with the law. Then: the company must make advertising (the form of advertising) in a harmonious form with the law. That is to say: in a harmonious form (way) with the form in which the law (in which law) proceeds in the case. Properly: in a harmonious form with the proceeding —applying— of (the) law tailored to the case. In a harmonious form with the proceeding —applying— of (the) law in the being of the case —in the being called: case. In being (in the being): case— (in the case understood as a created being and defined by the union of its facts —of the facts of the case—).

 

That is to say: it (the company) must be diligent in making the harmonious advertising with the law according to the form in which the law (law) proceeds —applies— to the being of (the) advertising and, in general, to the being of (the) case (according to the case and to the extent of the case —tailored to the case—). Then: it must foresee and make a (digital) advertising tailored to the case. Because: it is the form (way) of making an advertisement (a form of advertising —the form of advertising. The form of its advertising—) harmonious with the law. Harmonious with the law (law) in the case. That is to say: harmonious with the proceeding —applying— of (the) law tailored to the case.

 

That makes the form and effect of advertising valid. Because: if the form is harmonious with the law (with the form of proceeding of the law according to the case, in the case and to the extent of the case —tailored to the case—) its effect will be harmonious with the law. For that reason: it (the company) must foresee and make that advertising in a professional form (way). In a form that makes the advertising is valid because it is harmonious (that is to say: because it coincides) with the form of the law in the case. With the form of proceeding —applying— of the law in the case. Properly: with the form of juridical validity in the case.

 

Then: in some cases (depending on the case) it is necessary that this form (that the form of advertising) be made based on the (juridical) profile of the consumer (on the juridical consumer profile). That is to say: based on the nature of the person of the consumer involved. Because: only in this form (way) is an advertisement made tailored to the case (to the extent of the case). And: in other cases advertising tailored to the case does not imply advertising based on the profile of the consumer. Because: it is not necessary for the form of advertising to be tailored to the case. Because: it is not necessary for advertising to be personalized for the consumer to be valid. Because: it is not necessary for advertising to be harmonious with the law (law) to measure the case (tailored to the case).

 

Then: the need for personalization of advertising is defined by diligence (mercantile — commercial—). The diligence of the company defines if it is necessary or unnecessary (proceeding or non-proceeding —unfair—. Appropriate or inadmissible. Applicable or inapplicable —valid or invalid—) that the form of advertising is personalized for the consumer. That need is defined according to what is necessary to make valid advertising. That is to say: to make advertising harmonious with the law. Then: the company must foresee the form of valid advertising and make the advertising in a valid form. Then: it (the company) must anticipate if the advertising must or must not be personalized for the consumer. And: it must foresee that the form of advertising that it defines as necessary (personalized or non-personalized) is made in a valid form. And: it must make that advertising (that form of advertising) valid (that is: in a valid form).

 

Included: if it (if the company) defines that the advertising must be personalized for the consumer it must make that personalization valid. That is to say: be harmonious with the law (law). Which is proceeding —appropriate. Applicable— (the law is proceeding) according to the case facts. Therefore: it (the law) proceeds taking into account the profile (the juridical profile. That involves —which involves—: the profile of the person because that is how her / his nature, purpose and juridical scope is defined. Properly: this is how her / his particular and specific characteristics are defined. That is to say: her / his juridical condition —status—. That is to say: her / his juridical profile) of the parties involved.

 

Then: the validity (validity) of the juridical acts of the consumer (the juridical validity of consumer juridical acts) is subject to the diligence that applies to her / his juridical profile of a person (physical —natural— or moral —juridical—) non-professional in the company’s market (profile that is defined according to the case, in the case and to the extent of the case —tailored to the case—). And: the consumer must be diligent in making every juridical act (that she / he makes in that personalization) valid. That is to say: in a harmonious form with the law (according to the form in which it proceeds to its being in the case).

 

But: the company (is the person who. Properly: it is the part of the juridical relationship with the consumer —consumption relationship, extra contractual and / or contractual, depending on the case— that) must foresee and make the consumer able to make (including: do) her / his (including: the consumer able to make its acts: when the consumer is a company. Because: that company is not a professional in the company’s market —in the market of the company that communicates its advertising to it—. In this case a company has the juridical profile of a consumer) acts in a valid form as far as it depends on the company. That is to say: it (the company) must be diligent in making the consumer able to make every juridical act related to her / his personalization in a valid form. Therefore: it must make the personalization form valid. And: since this form of personalization depends on the validity of the juridical acts of both the company and the consumer it (the company) must be diligent in making its acts in a valid form and in making the consumer can make her / his acts in a valid form.

 

That is to say: the company must be diligent in making the consumer able to make her / his acts under the diligence that applies to her / his juridical profile (to her / his profile of non-professional in the market of the company —in the company’s market—). Then: if both make their acts valid (based on the diligence of the company in foreseeing and making those acts are valid, in the diligence of the company in making its acts valid and in the diligence of the consumer in making her / his acts valid) the personalization is valid. Because: each act is valid and all their acts (that is to say: the whole created by the union of its parts —that is to say: the acts involved. Because: each juridical act involved is a part of being called personalization—) are valid. What makes the personalization being (that the being: personalization) is (be) valid.

 

It is precise: personalized advertising is for the consumer. It is not by the consumer. Another thing is that she / he does one or several acts in that personalization. And: in those acts (she / he) must be diligent to be valid. But: the diligence that applies to her / his is what is appropriate (is the one that proceeds —that applies—) for her / his juridical profile of consumer (depending on the case). It is not a mercantile (commercial) diligence. Therefore: the company (is the one that —is the party that—) must be diligent in foreseeing and making the consumer able to make her / his valid acts under the diligence that applies to her / his profile and in making the advertising is personalized and communicated in a valid form.

 

That is to say: both the personalization and communication (the form of communication) of advertising must be valid. The personalization is valid if it is harmonious with the law —law— (with the form in which the law proceeds —applies. comes— in that personalization, depending on the case). Communication is valid if it is harmonious with the law (with the form in which the law proceeds in that communication, depending on the case). Therefore: the company must be diligent in foreseeing and making the personalization in a valid form. And: in foreseeing and communicating in a valid form.

 

Therefore: personalized advertising is valid when its creation, functioning (operation —working—), communication and attention (attention of it effect —or effects, according to the case—) are valid. Because: that makes each part (that each of its parts) is valid and that its being (its whole —created by the union of its parts—) is valid. Then: being personalized advertising (the being: personalized advertising) is valid if (the) being personalization and (the) being communication are valid. Because: in the personalization being are included (the) being creation and (the) being functioning of personalized advertising and in the communication being are included (the) being communication and (the) being attention (because: it is the effect of the communication and if the communication is valid its effect is valid and validly attended, since from the personalization —including: from the conception and creation of advertising— the company foresees and makes a valid advertising which is only valid if its effect is foreseen —validly— and validly attended) of personalized advertising.

 

Properly: being personalized advertising is valid if each of its parts and its whole (created by the union of its parts) are valid. In short: personalized digital advertising is valid if its being (if its all) is valid. That’s why: diligence makes personalized advertising (personalized digital advertising) valid. Then: the company must be diligent in foreseeing and making the form that makes that validity. Properly: it must be diligent in foreseeing and making that validity in an effective (efficient and efficacious) form. That is to say: in an efficient and efficacious form. Because: validity only exists when it is made diligently. That is to say: when it is made in an effective form. That is: in an efficient and efficacious form.

 

Because: the (juridical) validity is the harmony of (the) being with its juridical must be (including: its duty to be legal). That is to say: it is the harmony of the case with the law (law). It is the harmony between the case and the form in which the law proceeds to it —to the case— (with the form in which the law proceeds) in (including: on) the case (to the case —tailored to the case—). Then: as an element of the law (law) is the diligence only validity exists when there is (when there exist) diligence. And: there is only diligence when there is (when there exist) effectiveness. Because: there is only diligence when there is (when there exist) efficiency and efficacious. Therefore: the diligence (diligence) is the form to make (juridical) validity.

 

Then: the diligence is defined and fulfilled according to the state of the art involved in the case. Because: it is the form to make effectiveness. Then: the company must be diligent in applying the current (the in force) state of the art in the case and / or in creating a current (an in force) state of the art in the case. Properly: the company (only) is diligent when it applies the current (the in force) state of the art in the case and / or creates a state of the art (and makes it current —makes it in in force. In forceable—) in the case. The need to apply and / or create the state of the art is defined by the (juridical) validity. That is to say: it is necessary to apply the state of the art if it is the form to make validity. And: it is necessary to create the state of the art if it is the form to make validity.

 

Then: in the case it (the company can apply the state of the art, create the (a) state of the art or apply and create the state of the art (that is to say: both apply the current —the in force— state of the art in the case and create the state of the art to make validity in part or all of the case). That is to say (according to the case): the validity of a part of the case may require the application of the state of the art and / or the creation of a state of the art and the validity of the whole (that is to say: of the union created by the set of the case parts) may need the application of the state of the art and / or the creation of a state of the art.

 

For that reason: artificial intelligence (A.I.) may be necessary to make a part and / or the whole of the case valid. Both in personalized advertising for the consumer and in advertising that is not personalized for the consumer. Because: it may be necessary to make (the) advertising tailored to the case. That is to say: to make the form of harmonious advertising with the law (law). Properly: to make valid business digital advertising. And: in other cases it is not necessary to apply (use) and / or create artificial intelligence because it is not diligent. Because: it does not make validity (it does not validate). Everything depends on the case.

 

Then: if the company is diligent in foreseeing and making a valid advertisement (because the advertising is made by the company or it is made in representation of the company) and the consumer is diligent in making her / his juridical acts valid (that is to say: the acts that she / he performs for personalization —to define her / his legal profile as a person—) the valid case is made —it (that) makes the valid case— (it becomes the valid case —the case becomes valid—). That is to say: the valid juridical relationship formed based on a digital business advertisement is made. Because: it is a harmonious relationship with the law (law).

 

Because: if business digital advertising is valid the juridical relationship that is formed based on it (in it) is valid, since its nature, purpose and scope is valid. Because: when the nature, object and scope of advertising is valid the relationship that this form has a valid nature, object and scope. Another thing is that the (a) relationship is not formed based on a digital business advertising (another thing is that it is a relationship that is not formed based on a digital business advertising). In that case its validity will depend on other elements. Properly: it will depend on the harmony of its facts with the law (law).

 

What makes advertising valid (—advertising be valid— valid advertising). Therefore: in the theory of preventive consumer law in digital advertising diligence is the form to make (juridical) validity. Both the diligence that applies to the juridical profile of the company (mercantile —commercial—) —company’s juridical profile— and the diligence that applies to the juridical profile of the consumer —consumer’s juridical profile— (who is not a professional in the market of the company with which forms a juridical relationship —extracontractual or contractual, depending on the case—).

 

 

Conclusion

 

The mercantile diligence makes the company communicate to the consumer a valid advertisement because it makes it (it makes that the company) foresees and makes its acts (that is to say: that the company make its acts related to that advertising) in a harmonious form with the law. Properly: makes the company creates and communicates (to communicate to the consumer) a harmonious advertising with the law (law).

 

Because: it makes both each juridical act related to advertising (including: the act of the consumer related to that advertising and / or the act of the third party that makes a part or the whole being of the company’s advertising —because the diligence does that the company foresees and makes that act, the act of the consumer and / or the act of the third party, as the case may be, be made, including: be done, diligently, that is: validly, in what depends on the juridical profile of the company in the case—) and advertising as a juridical (concrete) act be valid.

 

And: if the company is diligent in creating and communicating to the consumer a personalized advertising (when the diligence defines that this is the form of advertising —advertising form— necessary to be valid —for the advertising to be valid—) this (advertising) is valid because it is foreseen and made (including: done) in a harmonious form (way) with the form in which the law proceeds (applies) in the case. Properly: because it is foreseen and makes a harmonious advertising with the law (law).

 

That is to say: a valid advertising (valid advertising) is made because it is tailored to the case (including: to the extent of the case facts and the form in which the law —law— proceeds —in which the law is proceeding. Appropriate. Applicable— in the case). So: (business digital advertising) is valid because it is harmonious with the law (law).