Automated Decisions and Article No. 22 GDPR of the European Union: An Analysis of the Right to an ‘Explanation’

Abstract

The aim of this proposal is to analyze use of algorithms in automated decision procedures concerning subjective positions having legal relevance. In this regard, first paragraph of Article No. 22 GDPR, entitled Automated decision-making relating to natural persons, including profiling establishes that: “The data subject has 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 very nature of decision formulation through algorithms. In hypothesis, juridical nature or juridical effect of concept of “decision” could be restricted to circumstances such as financial solvency, predictability of motor vehicle accidents. In these cases, Right to refers to algorithmic decision obtained. For purposes of this abstract, most interesting element, which could give rise to a comparative judicial dispute, given validity of GDPR in all countries of European Union, concerns provision of par. 2 of Article No. 22, letters a) and c) which refers to implementation of to protect the rights, freedoms and legitimate interests of interested party”. What is counterpart used for implementing such measures? It would seem unquestionable that only element that can satisfy this appropriateness is human intervention, i.e. someone who has necessary authority, ability and competence to modify or revise decision disputed by user. Another authoritative source claims that such appropriate measures may also consist of automated systems that control algorithms, i.e. periodic reviews, introduction of procedures that verify accuracy of decision-making process or correct errors, discrimination issues, or inaccuracies from an outdated database in order to avoid self-learning algorithm based on wrong data and processes. Nevertheless, there are those who express perplexity about effectiveness of right to explanation, especially in relation to difficulty in interpreting legislative passages that envisage it within GDPR itself, together with doubts about mandatory nature of this explanatory right. This paper focuses on meaning of right to explanation of decision pursuant to Article No. 22 GDPR in order to allow interested parties to understand reasons for decision and possibly to dispute it.