Pogs, Bellbottoms, Tie-Dye Shirts and… Artificial Intelligence?

One of the aspects of my job that’s the most fun is writing about hot legal issues that pop up from time to time like the latest fad. Remember the GDPR? What about CASL? And don’t forget UAVs! Funnily enough, they always seem to come with an acronym.

All those issues are still relevant, although the initial breathless articles that accompanied their introduction have long since been replaced by staid legal summaries.

So, what’s the latest craze? Why, AI (another acronym!) of course. As you may have heard by now, generative artificial intelligence (a.k.a. AI) has significant potential to enhance productivity with some commentators predicting it will be as transformative as the industrial revolution. Indeed, CREA has blogged, on several occasions, about how REALTORS® could enhance their business by using AI.

All of which is great. But now to explore the other side: the legal risks.

Well, I’m pleased to tell you that AI is the first new technology to have ever been invented with zero legal risks. Time for me to pack up my briefcase, go home and take a nice, long, lawyerly nap (mic drop).

Sadly, it’s not quite that simple.

Many of the legal issues surrounding AI pertain to the tools themselves.

For starters, some AI tools have been the subject of complaints regarding how they collect, use, and disclose personal information. This has prompted privacy investigations by regulators around the world, including Canada’s federal privacy commissioner.

We’re starting to see lawsuits in the United States where it is alleged AI tools are scraping huge swaths of Internet content, in contravention of content creators’ copyright, in order to train AI tools and allow the tools to produce new content in the style of the original author. Hmmm maybe my idea to release a Stranger Things-themed novella as a side-hustle needs a re-think…

Recent administrative proceedings have held that human authorship is necessary to create copyright. This means, for example, that an AI-generated image would not be entitled to copyright protection.

Other legal issues that have arisen relate to improper use of AI tools. For example, earlier this year it was reported two lawyers were reprimanded for using ChatGPT to write a case brief. Unfortunately for them, the brief contained fake quotes and non-existent case law which, you can imagine, the presiding judge did not look kindly upon.

While I’m not aware of any cases in Canada holding that the use of AI by a REALTOR® is unlawful or inappropriate, it’s possible that something will arise in the future.  

Does all this mean you should throw up your hands and give up? Of course not! But, like most things in your professional life, it pays to do your due diligence.

You can start by reading this blog article that I wrote a few years ago on issues you may want to consider before adopting any new technology, including:

  1. Figuring out your obligations;
  2. Reading the fine print; and
  3. Researching the compliance history of the product.

Hopefully it helps you adopt an analytical and purposeful approach to this brave new technological wonder we call AI.

But enough preaching – time to go water my Chia Pet.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Simon Parham is General Counsel and Corporate Secretary at the Canadian Real Estate Association. He has expertise in a variety of federal laws and issues, including anti-money laundering and privacy law. Prior to joining CREA, Simon worked as counsel for the Department of Justice, where he provided legal advice to the Department of National Defence.

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