Injunction to secure evidence in litigation concerning AI-generated advertising
It is becoming increasingly common for businesses to use AI to generate advertising, as it can significantly speed up the creation of even the most complex marketing content. Equally, however, using AI in this way raises questions, for instance about the accuracy of advertising messages or data used to generate them. As a result, there is an increasing number of litigation cases concerning matters such as accountability of an advertiser where the AI-generated advertising might be misleading.
Recently, in an interesting and multifaceted advertising law case, TKP’s litigation team successfully obtained a ruling granting an injunction to secure evidence. The advertisement in question featured reviews posted on Google about the advertiser. The reviews were grouped according to subject matter and processed using AI tools, including tools used for opinion mining. Opinion mining analyses natural language to automatically identify and classify sentiment in a text. The advertisement thus incorporated AI-driven assessments of whether particular comments were positive or negative within predefined subject areas.
In a final and binding judgment, the Poznań Regional Court fully concurred with TKP’s client, that the Polish Act on Combating Unfair Competition might have been breached as a result of manipulative opinion mining. The court granted a motion to secure the materials used to create the advertisement, recognising them as potentially key evidence for the future case.
The materials in question included:
- a complete and technical description of the methodology followed to create the advertisement; including the AI tools used;
- a database containing the source data, i.e. Google reviews that had been filtered and processed by AI.
The ruling demonstrates that advertisers remain responsible for ensuring that AI-generated content is accurate, even when using advanced technologies, and especially where the generated content is incorporated into advertising directed towards consumers. Equally, the ruling reveals that businesses can take legal action against competitors, or protect their interests, even if key evidence of an infringement can only be obtained through separate ancillary proceedings.
The lawyers advising on the matter were the attorneys-at-law at TKP: Paweł Podrecki, Beata Matusiewicz-Kulig, Tomasz Targosz, Zbigniew Pinkalski, trainee attorney‑at‑law: Natalia Biernat and legal trainee: Janusz Trześniowski.
