The Impact of Profiling on Fundamental Rights

Abstract

The respect of human rights is essential to guarantee democracy and rule of law. But in a world where new technologies fundamentally change social relations and practices, it is not always clear what human rights and the rule of law actually mean, and how respect for human rights can be safeguarded. What happens when individuals are not primarily treated as persons of flesh and blood, but on the basis of digital representations? How does automated profiling affect individuals’ fundamental rights and fundamental societal values?

This paper, one of the results of the European PROFILING project, first elaborates the concepts of profiles and digital personae and describes how profiling is used in different application areas: anti-money laundering and counterterrorism, fraud prevention, employment and education, and ehealth.

Next, the impact of profiling on fundamental values, such as autonomy and the rule of law, and fundamental rights such as privacy, data protection and non-discrimination, is discussed. The paper then analyses how the European legal frameworks, including Convention 108, the Council of Europe’s 2010 Recommendation on profiling, the European Convention on Human Rights, the Data Protection Directive and the proposed General Data Protection Regulation, deal with the challenges of profiling to fundamental rights. Based on this analysis, three possible directions for enhancing legal protection against adverse effects of profiling are identified.

Keywords: profiling, privacy, data protection, non-discrimination, European law, legal protection