Jurisprudence is about establishing consistent interpretations of those words. The point of "legal certainty" is that an ordinary citizen can predict what will and won't be judged fair and reasonable. "Courts have ruled" is what you go by. The Supreme Court in whatever country is the final judge of that.
If your point is that it's inconsistent, that's trivially true. Human beings are involved.
After this exchange, I thought of a use that's been reduced to one syllable: FRAND, for "fair, reasonable, and non-discriminatory."
In this thread, for instance, when asked what unreasonable thing Google was doing, no one has an answer apparently. Let alone, alternatives.
Same with Fair vs Unfair.
So when it gets to the courts, and some line gets drawn - many people will get surprised, because what they thought was illegal/legal will not be the case.
And they were not likely unreasonable or wrong before hand either.
It’s not literal (as in de jure) ex-post facto of course, but it’s pretty close to de-facto.
Frankly, it’s awfully similar to the SEC’s handling of crypto regulation (and the confusion and BS resulting from it).
Have a vague enough rule that almost anything could apply. Refuse to provide any guidance or enforce it consistently. Come down on someone you don’t like later (after they’ve been doing it for decades), and claim they’ve been violating it the whole time and they should have known (somehow).
It may be legal (or not, we’ll find out), but it doesn’t seem just.
As for what Google is or isn't doing wrong: the prosecution has to lay that out. I would think the opening statement would have said that, but I didn't read it. If it was really weak, Google would have moved for a dismissal or directed verdict.
Which is by definition after it had occurred. Which is my point on retroactive.