Developing a Digital Welfare State: Data Protection and the Use of Automated Decision-Making in the Public Sector across Six EU Countries

Abstract

This article uses the sociolegal perspective to address current problems surrounding data protection and the experimental use of automated decision-making systems. This article outlines and discusses the hard laws regarding national adaptations of the European General Data Protection Regulation and other regulations as well as the use of automated decision-making in the public sector in six European countries (Denmark, Sweden, Germany, Finland, France, and the Netherlands). Despite its limitations, the General Data Protection Regulation has impacted the geopolitics of the global data market by empowering citizens and data protection authorities to voice their complaints and conduct investigations regarding data breaches. We draw on the Esping-Andersen welfare state typology to advance our understanding of the different approaches of states to citizens’ data protection and data use for automated decision-making between countries in the Nordic regime and the Conservative-Corporatist regime. Our study clearly indicates a need for additional legislation regarding the use of citizens’ data for automated decision-making and regulation of automated decision-making. Our results also indicate that legislation in Finland, Sweden, and Denmark draws upon the mutual trust between public administrations and citizens and thus offers only general guarantees regarding the use of citizens’ data. In contrast, Germany, France, and the Netherlands have enacted a combination of general and sectoral regulations to protect and restrict citizens’ rights. We also identify some problematic national policy responses to the General Data Protection Regulation that empower governments and related institutions to make citizens accountable to states’ stricter obligations and tougher sanctions. The article contributes to the discussion on the current phase of the developing digital welfare state in Europe and the role of new technologies (i.e., automated decision-making) in this phase. We argue that states and public institutions should play a central role in strengthening the social norms associated with data privacy and protection as well as citizens’ right to social security.