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|Title:||Automated decisions and Article No. 22 GDPR of the European Union: an analysis of theright to an "explanation"|
|Bibliographic citation:||Falletti Elena (2019), Automated decisions and Article No. 22 GDPR of the European Union: an analysis of theright to an "explanation". In: Europeanrights.eu: osservatorio dei diritti fondamentali in Europa. Articoli, 31 dicembre 2019, p. 1-15.|
|Abstract:||The aim of this proposal is to analyze the use of algorithms in automated decisionprocedures concerning subjective positions having legal relevance. In this regard, the firstparagraph of Article No. 22 GDPR, entitled "Automated decision-making relating to naturalpersons, including profiling" establishes that: "The data subject has the right not to be subjected toa decision based solely on automated processing, including profiling, which produces legal effectsthat concern him or that significantly affects his person". This norm gives rise to importantquestions concerning the very nature of decision formulation through algorithms. In hypothesis, thejuridical nature or juridical effect of the concept of "decision" could be restricted to circumstancessuch as financial solvency, predictability of motor vehicle accidents. In these cases, the "Right toexplanation" refers to the algorithmic decision obtained. For the purposes of this abstract, the mostinteresting element, which could give rise to a comparative judicial dispute, given the validity of theGDPR 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 "therights, freedoms and legitimate interests of the interested party". What is the "appropriate" counterpart used for implementing such measures? It would seem unquestionable that the onlyelement that can satisfy this "appropriateness" is human intervention, i.e. someone who has thenecessary 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 automatedsystems that control the algorithms, i.e. periodic reviews, introduction of procedures that verify theaccuracy of the decision-making process or correct errors, discrimination issues, or inaccuraciesfrom an outdated database in order to avoid the self-learning algorithm based on wrong data andprocesses. Nevertheless, there are those who express perplexity about the effectiveness of the rightto explanation, especially in relation to the difficulty in interpreting the legislative passages thatenvisage it within the GDPR itself, together with doubts about the mandatory nature of thisexplanatory 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 andpossibly to dispute it.|
|Journal/Book:||Europeanrights.eu: osservatorio dei diritti fondamentali in Europa. Articoli|
|Appears in Collections:||Altra tipologia|
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