Social Welfare, Risk Profiling and Fundamental Rights: The Case of SyRI in the Netherlands

Journal of Intellectual Property, Information Technology and E-Commerce Law (JIPITEC) 12 (4) 2021

15 Pages Posted: 2 Mar 2022

See all articles by Naomi Appelman

Naomi Appelman

University of Amsterdam - Institute for Information Law (IViR)

Ronan Ó Fathaigh

University of Amsterdam - Institute for Information Law (IViR)

Joris van Hoboken

University of Amsterdam

Date Written: December 14, 2021

Abstract

This article discusses the use of automated decisioning-making (ADM) systems by public administrative bodies, particularly systems designed to combat social-welfare fraud, from a European fundamental rights law perspective. The article begins by outlining the emerging fundamental rights issues in relation to ADM systems used by public administrative bodies. Building upon this, the article critically analyses a recent landmark judgment from the Netherlands and uses this as a case study for discussion of the application of fundamental rights law to ADM systems by public authorities more generally. In the so-called SyRI judgment, the District Court of The Hague held that a controversial automated welfare-fraud detection system (SyRI), which allows the linking and analysing of data from an array of government agencies to generate fraud risk reports on people, violated the right to private life, guaranteed under Article 8 of the European Convention on Human Rights (ECHR). The Court held that SyRI was insufficiently transparent, and contained insufficient safeguards, to protect the right to privacy, in violation of Article 8 ECHR. This was one of the first times an ADM system being used by welfare authorities has been halted on the basis of Article 8 ECHR. The article critically analyses the SyRI judgment from a fundamental rights perspective, including by examining how the Court brought principles contained in the General Data Protection Regulation within the rubric of Article 8 ECHR as well as the importance the Court attaches to the principle of transparency under Article 8 ECHR. Finally, the article discusses how the Dutch government responded to the judgment. and discusses proposed new legislation, which is arguably more inva-sive, with the article concluding with some lessons that can be drawn for the broader policy and legal debate on ADM systems used by public authorities. implications.

Keywords: Automated decision-making, Digital administrative state, Fundamental rights, Risk profiling, Social welfare

Suggested Citation

Appelman, Naomi and Ó Fathaigh, Ronan and van Hoboken, Joris V. J., Social Welfare, Risk Profiling and Fundamental Rights: The Case of SyRI in the Netherlands (December 14, 2021). Journal of Intellectual Property, Information Technology and E-Commerce Law (JIPITEC) 12 (4) 2021 , Available at SSRN: https://ssrn.com/abstract=3984935

Naomi Appelman (Contact Author)

University of Amsterdam - Institute for Information Law (IViR) ( email )

Rokin 84
Amsterdam, 1012 KX
Netherlands

Ronan Ó Fathaigh

University of Amsterdam - Institute for Information Law (IViR) ( email )

Nieuwe Achtergracht 166
Amsterdam, 1000 BA
Netherlands

Joris V. J. Van Hoboken

University of Amsterdam ( email )

Spui 21
Amsterdam, 1018 WB
Netherlands

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