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ChatGPT may be smart enough to pass the bar exam, but lawyers should take caution before relying on the Artificial Intelligence (“AI”) platform to conduct any legal business.

On June 22, 2023, Judge P. Kevin Castel of the Southern District of New York released a lengthy order sanctioning two attorneys for submitting a brief drafted by ChatGPT. Judge Castel reprimanded the attorneys, explaining that while “there is nothing inherently improper about using a reliable artificial intelligence tool for assistance,” the attorneys “abandoned their responsibilities” by submitting a brief littered with fake judicial opinions, quotes and citations.

Last month, TikTok sued Montana’s attorney general—alleging the state’s recent TikTok ban is unconstitutional and is preempted by federal law.

On May 17, Montana Governor Greg Gianforte signed a first-of-its-kind law banning TikTok from operating in the state, in order “[t]o protect Montanans’ personal, private, and sensitive data and information from intelligence gathering by the Chinese Communist Party.”

In an unsigned per curiam opinion yesterday in Gonzalez v. Google, the U.S. Supreme Court vacated the Ninth Circuit’s judgment— which had held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act – and remanded it. But the Court’s opinion entirely skirted a highly-anticipated issue: whether Section 230 does, in fact, shelter as much activity as courts have held to date.

The Supreme Court heard oral argument last week in cases that will have extensive implications for online platforms, and, more broadly, for internet speech across the board. Gonzalez v. Google, in particular, may result in a first-of-its-kind clarification of the scope of 47 U.S.C. § 230. 

Under the Clayton Act (15 U.S.  Code § 18), certain business acquisitions are prohibited where “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” Long-standing jurisprudence has established that merger challenges require, at the outset, a prima facie showing of the likelihood of a substantial lessoning of competition that would result from the merger or acquisition.  Such prima facie showing typically takes the form of claims and evidence related to market shares above a certain level, but can take other forms.

On May 19, 2021, the United Kingdom’s Competition and Markets Authority (“CMA”) and the Information Commissioner’s Office (“ICO”) published a joint statement setting out their shared views on the relationship between competition and data protection in the digital economy.

Both authorities recognize that the digital economy has the potential to have a hugely positive impact on people’s lives, from improvements to public services to companies driving innovations that can make. However, they have made clear that their collective position is that this can best be achieved where digital markets are competitive, consumer and data protection rights are respected, and citizens are empowered to exercise meaningful control over their own data. In their view, there are strong synergies between the interests of data protection and competition, as demonstrated by the close working relationship which has developed between the CMA and ICO in recent years.

Across the globe, an increasing number of international regulators have opened inquiries or adopted new rules and regulations to address competition law concerns about digital platforms and digital markets.  Whilst the spotlight is likely to initially fall on the conduct and business practices of large online platforms – the so-called gatekeepers – we expect international regulators to cast their net more broadly. Businesses looking to expand to new jurisdictions need to navigate these regulations and assess the risk of enforcement actions. Whether the expansion comes through acquisitions or otherwise, regulators are increasingly looking at multinational businesses and platforms.  Below is an overview of key international developments.

Over the past month, state enforcers have declared a war on price gouging, but some of the most effective enforcers have not been the states. Online platforms and other large retailers have taken extraordinary steps to restrict price gouging, and their monitoring has already led to hundreds of thousands of items pulled from e-commerce websites. With entire countries engaging in social distancing, e-commerce has become de-facto commerce for many, and this dramatic and sudden shift gives online sellers enormous influence on price gouging enforcement.