Article published in C&R – Journal of Competition and Regulation, issues 55–56, January/December 20251
The article analyses the phenomena of ‘Techwashing’ and ‘AI-Washing’, practices through which companies may convey to consumers an exaggerated or misleading perception of the use, capabilities or level of development of certain technologies, in particular artificial intelligence systems.
These practices may unduly influence consumers’ decisions, distort competition and undermine confidence in the markets.
Drawing on the Portuguese legal framework governing advertising and unfair commercial practices, this article examines the extent to which claims relating to the use of technology and artificial intelligence may be considered misleading, and the relevant criteria for such an assessment.
The analysis focuses on a number of particularly complex issues: what should be understood by ‘technology’ or ‘artificial intelligence’ for the purposes of a commercial claim? When does a reference to a particular technology cease to be a legitimate claim and instead create a misleading impression in the consumer’s mind? And can the use of AI in a company’s internal processes, without any direct impact on the product or service offered, justify a commercial claim that it ‘uses AI’?
The article examines these issues in the light of the European and Portuguese legal frameworks, including the Artificial Intelligence Regulation (Regulation (EU) 2024/1689), and identifies the challenges that rapid technological change poses to the application of traditional concepts of advertising and unfair commercial practices.
It can be concluded that the current legal framework provides relevant tools for addressing these practices, but that there remain areas of uncertainty regarding the criteria applicable to the assessment of technological claims.
In this context, transparency, accuracy and the ability to substantiate claims relating to the use of technology and AI are of particular importance.
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