Right to Explanation and Algorithm Legibility in the EU Member States Legislations
26 Pages Posted: 10 Sep 2018 Last revised: 7 Oct 2018
Date Written: August 17, 2018
The aim of this paper is to analyse the very recently approved national Member States’ laws that have implemented the GDPR in the field of automated decision-making (prohibition, exceptions, safeguards). The EU General Data Protection Regulation has tried to provide a solution to risks of automated decision-making through different tools: a right to receive/access meaningful information about logics, significance and envisaged effects of automated decision making processes; the right not to be subject to automated decision making with several safeguards and restrains for the limited cases in which automated decision making is permitted. In a previous article it was suggested that the dualism between right to ex post explanation vs. right to ex ante general information should be overcome: transparency and comprehensibility should merge in the concept of “legibility”. One remaining problem is the exact meaning of “suitable measures to safeguard the data subject's rights and freedoms and legitimate interests” that should be taken (e.g. when the automated decision making is authorised by Union or Member State law). Member States laws implementing the GDPR are, thus, an important reference when discussing automated decision-making and suitable safeguards to protect individuals against such decisions: Article 22(2) lett. b explicitly refers to Member States laws, that should also adopt ‘suitable safeguards’ for protecting individuals. Even though many Member States have not implemented Article 22(2), lett. b, at least eight states have specific provisions about automated decision-making in their GDPR implementation laws. The approaches are very diverse: scope of the provision can be narrow (just automated decisions producing legal or similarly significant effects) or wide (any decision with detrimental impact) and even specific safeguards provided are very diverse. In particular, just few states guarantee a right to legibility/explanation about the algorithm, even considering accountability of algorithms; while most states provide just the three safeguards mentioned at Article 22(3): subject’s right to express his/her point of view; right to obtain human intervention; right to contest the decision. Interestingly, all safeguards are very much interrelated: the subject’s right to express his/her point of view implies the right to obtain human intervention and the right to contest/challenge the decision. Similarly, the right to contest/challenge implies a right to understand (receive explanation about) the decision-making mechanism.
Keywords: Right to Explanation; Automated Decision-Making; AI; Legibility; Suitable Safeguards; Privacy; Data Protection
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