Algorithmic Transparency and Explainability for EU Consumer Protection: Unwrapping the Regulatory Premises

Critical Analysis of Law (CAL), Vol. 8, No. 1, 43-63 , April 2021

Max Planck Private Law Research Paper No. 21/7

23 Pages Posted: 15 Apr 2021

See all articles by Mateusz Grochowski

Mateusz Grochowski

Max Planck Institute for Comparative and International Private Law; Yale Law School; Polish Academy of Sciences - Institute of Legal Studies

Agnieszka Jabłonowska

University of Lodz - Faculty of Law and Administration; European University Institute - Department of Law (LAW)

Francesca Lagioia

European University Institute - Department of Law (LAW); University of Bologna - Research Center of History of Law, Philosophy and Sociology of Law, and Computer Science and Law (CIRSFID)

Giovanni Sartor

European University Institute Law Department

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Abstract

The principles of transparency and explainability are landmarks of the current EU approach to artificial intelligence. Both are invoked in the policy guidelines as values governing algorithmic decision-making, while providing rationales for existing normative provisions, on information duties, access rights and control powers. This contribution addresses the debate on transparency and explainability from the EU consumer market perspective. The consumers’ position relative to algorithmic decision-making is considered, and their risks concerning mass surveillance, exploitation, and manipulation are discussed. The concept of algorithmic opacity is analyzed, distinguishing technology-based opacity that is intrinsic to design choices, from relational opacity toward users. The response of EU law is then considered. The emerging approach to algorithmic transparency and explainability is connected to the broader regulatory goals concerning transparency in consumer markets. It is argued that EU law focuses on adequate information being provided to lay consumers (exoteric transparency), rather than on understandability to experts (esoteric transparency). A discussion follows on the benefits of transparency, on its costs, and on the extent to which transparency can be implemented without affecting performance. Finally, the merits of a transparency-based regulation of algorithms are discussed and insights are provided on regulating transparency and explainability within the EU law paradigm.

Note: This article is published in the Max Planck Private Law Research Paper Series thanks to Open Access. It is distributed under the terms of the Creative Commons Attribution 3.0 International License. No changes were made to the article. As published in: Critical Analysis of Law 8 (2021), 43–63.

Keywords: consumer law, EU law, algorithms, artificial intelligence, transparency, explainability

Suggested Citation

Grochowski, Mateusz and Jabłonowska, Agnieszka and Lagioia, Francesca and Sartor, Giovanni, Algorithmic Transparency and Explainability for EU Consumer Protection: Unwrapping the Regulatory Premises. Critical Analysis of Law (CAL), Vol. 8, No. 1, 43-63 , April 2021, Max Planck Private Law Research Paper No. 21/7, Available at SSRN: https://ssrn.com/abstract=3826415

Mateusz Grochowski (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
Germany

Yale Law School ( email )

New Haven

Polish Academy of Sciences - Institute of Legal Studies ( email )

Nowy Swiat 72
Warsaw, 00-330
Poland

Agnieszka Jabłonowska

University of Lodz - Faculty of Law and Administration ( email )

Narutowicza 65 str.
Lodz, 90-131
Poland

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY

Francesca Lagioia

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
Italy

University of Bologna - Research Center of History of Law, Philosophy and Sociology of Law, and Computer Science and Law (CIRSFID) ( email )

Via Galliera 3
I-40121 Bologna
Italy

Giovanni Sartor

European University Institute Law Department ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY

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