Automated Decisions and Article No. 22 GDPR of the European Union: An Analysis of the Right to an ‘Explanation’
15 Pages Posted: 15 Jan 2020
Date Written: December 27, 2019
The aim of this proposal is to analyze the use of algorithms in automated decision procedures concerning subjective positions having legal relevance. In this regard, the first paragraph of Article No. 22 GDPR, entitled "Automated decision-making relating to natural persons, including profiling" establishes that: “The data subject has the right not to be subjected to a decision based solely on automated processing, including profiling, which produces legal effects that concern him or that significantly affects his person”. This norm gives rise to important questions concerning the very nature of decision formulation through algorithms. In hypothesis, the juridical nature or juridical effect of the concept of “decision” could be restricted to circumstances such as financial solvency, predictability of motor vehicle accidents. In these cases, the "Right to explanation" refers to the algorithmic decision obtained. For the purposes of this abstract, the most interesting element, which could give rise to a comparative judicial dispute, given the validity of the GDPR in all the countries of the European Union, concerns the provision of par. 2 of Article No. 22, letters a) and c) which refers to the implementation of "appropriate measures" to protect "the rights, freedoms and legitimate interests of the interested party”. What is the "appropriate" counterpart used for implementing such measures? It would seem unquestionable that the only element that can satisfy this "appropriateness" is human intervention, i.e. someone who has the necessary authority, ability and competence to modify or revise the decision disputed by the user. Another authoritative source claims that such appropriate measures may also consist of automated systems that control the algorithms, i.e. periodic reviews, introduction of procedures that verify the accuracy of the decision-making process or correct errors, discrimination issues, or inaccuracies from an outdated database in order to avoid the self-learning algorithm based on wrong data and processes. Nevertheless, there are those who express perplexity about the effectiveness of the right to explanation, especially in relation to the difficulty in interpreting the legislative passages that envisage it within the GDPR itself, together with doubts about the mandatory nature of this explanatory right.
This paper focuses on the meaning of right to the explanation of the decision pursuant to Article No. 22 GDPR in order to allow the interested parties to understand the reasons for the decision and possibly to dispute it.
Keywords: Privacy, Artificial Intelligence, Automated Decision-making
JEL Classification: K1, K10
Suggested Citation: Suggested Citation