Assessing the (severity of) impacts on fundamental rights

Abstract

"Risk to fundamental rights,", "impact on fundamental rights", "harm to fundamental rights" and "non-material damages" are all terms referring to similar problems, though inherently ambiguous and very problematic, especially in the age of AI-based technologies and digital platforms. Traditionally, legal and social sciences have two different approaches to analysing the impacts on fundamental rights: the rights-based approach and the risk of harm-based approach to fundamental rights. The rights-based approach is binary, focusing on whether rights and obligations are respected or violated. In contrast, a harm-based approach focuses on the anticipation of undesired events and measuring their likelihood and severity. However, focusing solely on "harms'' or "damages'' is reductionist, while existing impact assessment models often use vague terms like "gravity", "intensity," and "magnitude", which do not effectively help measure interferences with fundamental rights. Without operational criteria to measure these risks, most EU digital strategies demanding impact and risk assessments fail. Examples include the Data Protection Impact Assessment (DPIA) in the GDPR, Fundamental Rights Impact Assessments (FRIA) in the AI Act, and systemic risk assessments in the Digital Services Act (DSA). We posit that interferences with fundamental rights are seen as a spectrum that ranges from social contacts to violations, and these interferences can and should be measured. Thus, this article proposes a rights-based approach, combining it with elements from the harm approach and proposes an actionable parameter-based framework (also based on social meaning theories and social perception methodologies) to assess impacts on fundamental rights. The proposed multi-metric approach ensures a comprehensive assessment of the severity of impacts on fundamental rights within EU law, particularly in GDPR, DSA, and AI Act. This approach aims to inform policymaking, prioritise high-risk scenarios and propose mitigation measures in digital markets. This is especially important for detecting and addressing human vulnerabilities in interactions with digital technologies.