Why a Right to Explanation of Automated Decision-Making Does Not Exist in the General Data Protection Regulation
Abstract
In recent months, researchers,1 government bodies,2 and the media3 have claimed that a ‘right to explanation’ of decisions made by automated and artificially intelligent algorithmic systems is legally mandated by the forthcoming European Union General Data Protection Regulation4 2016/679 (GDPR). The right to explanation is viewed as a promising mechanism in the broader pursuit by government and industry for accountability and transparency in algorithms, artificial intelligence, robotics, and other automated systems.5 Automated systems can have many unintended and unexpected effects.6 Public assessment of the extent and source of these problems is often difficult,7 owing to the use of complex and opaque algorithmic mechanisms.8 The alleged right to explanation would require data controllers to explain how such mechanisms reach decisions. Significant hype has been mounting over the empowering effects of such a legally enforceable right for data subjects, and the disruption of data intensive industries, which would be forced to explain how complex and perhaps inscrutable automated methods work in practice.
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Cites
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Claims the paper makes
0 of 44 cited sources checked · 0 supported · 0 flagged
- Findingnone given
The GDPR only mandates that data subjects receive meaningful, but properly limited, information (Articles 13-15) about the logic involved, as well as the significance and the envisaged consequences of automated decision-making systems.
“In contrast to the right to explanation of specific automated decisions claimed elsewhere, the GDPR only mandates that data subjects receive meaningful, but properly limited, information (Articles 13-15) about the logic involved, as well as the significance and the envisaged consequences of automated decision-making systems, what we term a 'right to be informed'.”
Quote in the paperSubstantial claim - Findingreasoning
In all of the GDPR, a right to explanation is only explicitly mentioned in Recital 71.
“In all of the GDPR, a right to explanation is only explicitly mentioned in Recital 71, which states that a person who has been subject to automated decisionmaking:”
Quote in the paperSubstantial claim - Findingreasoning
Article 22(3) does not grant a right to obtain an explanation of the decision reached.
“but not to obtain an explanation of the decision reached.”
Quote in the paperSubstantial claim - Findingcitation
The SCHUFA judgments do not explicitly address automated decision-making, as the court decided an automated decision was not made because automated processing was only used for preparation of evidence, while the actual decision was made by a human being.
“It is worth noting that the SCHUFA judgments do not explicitly address automated decision-making, as the court decided an automated decision was not made because automated processing was only used for preparation of evidence, while the actual decision was made by a human being.”
Quote in the paperSubstantial claim0 of 1 sources checked- cites Gola, Klug and Ko ¨rffer (n 51) Rn 18-19
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Findingnone given
The final wording of the GDPR concerning protections against profiling and automated decision-making hardly changed from the relevant Articles and Recitals of the Data Protection Directive 1995.
“Interestingly, despite years of negotiations, the final wording of the GDPR concerning protections against profiling and automated decision-making hardly changed from the relevant Articles and Recitals of the Data Protection Directive 1995.”
Quote in the paperSubstantial claim
- Findingreasoning
Under Article 22(3), data subjects are granted additional safeguards to obtain human intervention, express views, or contest a decision.
“data subjects are granted additional safeguards to obtain human intervention, express views, or contest a decision (Article 22(3))”
Quote in the paperSubstantial claim - Findingreasoning
The only safeguard against automated decision-making mentioned in the Directive is the opportunity to express one's views.
“First, the only safeguard against automated decision-making mentioned in the Directive is the opportunity to express one's views.”
Quote in the paperSubstantial claim - Findingreasoning
The right of access has to be invoked by the data subject.
“In contrast to the notification duties of data controllers in Articles 13-14, the right of access has to be invoked by the data subject.”
Quote in the paperSubstantial claim - Findingcitation
German data protection law recognizes a distinction between explanations of system functionality and specific automated decisions in section 6(a) of the Bundesdatenschutzgesetz, which jointly implements Articles 12 and 15 of the Directive.
“German data protection law has similarly recognized a distinction between explanations of system functionality and specific automated decisions in section 6(a) of the Bundesdatenschutzgesetz, which jointly implements Articles 12 (right of access) and 15 (safeguards for automated individual decisions) of the Directive.”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites Korff (n 51)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Findingreasoning
The link between Articles 13(2)f and 14(2)g and the safeguards in Article 22(3) is not made in the GDPR.
“This link is not made in the GDPR.”
Quote in the paperSubstantial claim - Findingreasoning
Article 22(3) does not mention a right to explanation.
“Critically, a right to explanation is not mentioned.”
Quote in the paperSubstantial claim - Findingnone given
Analysis of prior drafts of the GDPR has revealed several tensions between the EP, Commission, and Council.
“Analysis of prior drafts of the GDPR has revealed several tensions between the EP, Commission, and Council.”
Quote in the paperSubstantial claim - Findingnone given
The EC did not include a right to explanation in its draft at all.
“The EC did not include such a right at all.”
Quote in the paperSubstantial claim - Findingreasoning
The EP generally sought stronger protections for data subjects against automated decision-making than the EC or Council.
“The EP generally sought stronger protections for data subjects against automated decision-making than the EC or Council.”
Quote in the paperNot a substantial claim - Findingcitation
Human assessment would also have been required under the EP's preferred approach.
“Human assessment would also have been required.118”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [118]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Findingcitation
The EP wanted to protect citizens from automated decision that have legal or significant effects when predominantly, and not just solely, based on automated processes.
“Further, the EP wanted to protect citizens from automated decision that have legal or significant effects when predominantly, 116 and not just solely,foot_9 based on automated processes.”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [116]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Premisecitation
Recitals are not legally binding.
“Recitals provide guidance 15 on how to interpret the Articles, but are not themselves legally binding.16”
Quote in the paperSubstantial claim0 of 2 sources checked- cites [15]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- cites [16]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
The GDPR's right of access allows for a limited right to explanation of the functionality of automated decision-making systems-what the authors refer to as the 'right to be informed'.
“we argue that the GDPR's right of access allows for a limited right to explanation of the functionality of automated decision-making systems-what we refer to as the 'right to be informed'.”
Quote in the paperSubstantial claim - Interpretationcitation
The process that the algorithms use does not have to be disclosed.
“The process that the algorithms use does not have to be disclosed.83”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [83]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationcitation
The Article 12(a) phrase is open to greater interpretation than Article 15 GDPR, which requires only information about the existence of automated decision-making and meaningful information about the logic involved, significance and envisaged consequences.
“It is interesting to note that this phrase is open to greater interpretation than Article 15 GDPR, 78 which requires only information about 'the existence of automated decision-making, including profiling, referred to in Article 22(1) and ( 4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [78]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
If 'knowledge of logic involved' in Article 12(a) was intended to establish a right to obtain an explanation about decisions reached, it would not have been necessary for German legislators to enact separately a right to explanation in section 6(a)2(2) in the same Article containing the extended right of access in section 6(a)3.
“If 'knowledge of logic involved' in Article 12(a) was intended to establish a right to obtain an explanation about decisions reached, it would not have been necessary for German legislators to enact separately a right to explanation (section 6(a)2( 2)) in the same Article containing the extended right of access (section 6(a)3), especially considering both rights must be invoked by the data subject”
Quote in the paperSubstantial claim - Interpretationreasoning
The phrase 'envisaged consequences' in Article 15(1)h is future oriented, requiring the data controller to inform the data subject of possible consequences of the automated decision-making before such processing occurs.
“The phrase 'envisaged consequences' is future oriented, suggesting that the data controller must inform the data subject of possible consequences of the automated decision-making before such processing occurs.”
Quote in the paperSubstantial claim - Interpretationreasoning
The language used in Articles 13(2)f and 14(2)g supports the interpretation that only an ex ante explanation is required.
“The language used in Articles 13(2)f and 14(2)g also supports the interpretation that only an ex ante explanation is required.”
Quote in the paperSubstantial claim - Interpretationreasoning
The omission of a right to explanation from Article 22 appears to be intentional.
“This change suggests that legislators intentionally chose to make the right to explanation non-binding by placing it in Recital 71.”
Quote in the paperSubstantial claim - Premisecitation
The rating of similar groups has historically not needed to be disclosed.
“Furthermore, the rating of similar groups has historically not needed to be disclosed.84”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [84]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
Interpreting 'logic involved' to grant an ex post explanation of specific decisions would make the other terms of Article 15(1)h incoherent if the right of access was invoked after a decision was made.
“Interpreting 'logic involved' to grant an ex post explanation of specific decisions would mean the other terms of Article 15(1)h would be incoherent, if the right of access was invoked after a decision was made.”
Quote in the paperSubstantial claim - Interpretationreasoning
If legally binding, Recital 71 would require an ex post explanation of specific decisions.
“If legally binding, this provision would require an ex post explanation of specific decisions, as Recital 71 addresses safeguards to be in place once a decision has been reached.”
Quote in the paperSubstantial claim - Interpretationcitation
The GDPR appears to offer less protection to data subjects concerning explanations of automated decision-making than some current data protection laws in Europe based on the Directive.
“The GDPR appears to offer less protection to data subjects concerning explanations of automated decision-making than some current data protection laws in Europe based on the Directive.74”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [74]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
The change of wording indicates that the intention of the right of access in the GDPR is to grant access to information about the usage and functionality of automated decision-making.
“The change of wording indicates that the intention of the right of access in the GDPR is to grant access to information about the 'usage' and functionality of such automated decision-making.”
Quote in the paperSubstantial claim- Rests on an assumption: Changes in the wording and structure of GDPR provisions reflect the legislator's intention regarding the scope of the right of access.
- Premisecitation
An Austrian Data Protection Commission decision found that there is no automated decision where the decision was based on a group rather than the individual.
“In this decision it was found that there is no automated decision because the decision was based on a group ('peer group') rather than the individual”
Quote in the paperNot a substantial claim - Interpretationreasoning
The claim that Articles 13-14, in combination with Article 22(3), grant an ex post right to explanation of specific decisions is mistaken.
“This claim is mistaken for two reasons.”
Quote in the paperSubstantial claim - Interpretationnone given
The loophole through which automated processes that merely produce evidence for decision-making are not subject to the right of access has proven to be a significant limiting factor.
“The loophole-through which automated processes that merely produce evidence for decision-making (rather than actually making decisions) are not subject to the right of access (specifically, the provision to disclose information about the 'logic involved')-has also proven to be a significant limiting factor.”
Quote in the paperNot a substantial claim - Interpretationreasoning
The claim for an ex post right to explanation of specific decisions conflates the legally binding notification duties specified in Articles 13-14 and the non-binding right specified in Recital 71.
“The claim also conflates the legally binding notification duties, specified in Articles 13-14, and the non-binding right, specified in Recital 71.”
Quote in the paperSubstantial claim - Interpretationreasoning
The term 'envisaged' limits predictions to ex ante explanations of system functionality, such as the general purpose of the system or the type of impact expected from the type of decision it makes.
“The term 'envisaged' limits these predictions to ex ante explanations of system functionality, for instance, concerning the general purpose of the system, or the type of impact to be expected from the type of decision it makes.”
Quote in the paperSubstantial claim - Premisecitation
Austrian Data Protection Commission decisions have held that the data controller must inform the data subject about the procedure of automated decision-making in an understandable manner.
“According to a decision of the Austrian Data Protection Commission 25 April 2008 App no K121.348/0007-DSK/2008,the obligation is with the data controller to inform about the procedure of automated decisionmaking in an understandable manner:”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites Decision of the Austrian Data Protection Commission 25 April 2008 App no K121.348/0007-DSK/2008
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
The GDPR's right of access (Article 15(1)h) only grants an explanation of automated decision-making addressing system functionality, not the rationale and circumstances of specific decisions.
“we argue that, as with notification duties in Articles 13-14, and regardless of when it is invoked by the data subject, the GDPR's right of access only grants an explanation of automated decision-making addressing system functionality, not the rationale and circumstances of specific decisions.”
Quote in the paperSubstantial claim- Rests on an assumption: The GDPR's provisions should be interpreted coherently as a whole.
- Interpretationreasoning
Articles 13-14 cannot be used as evidence of an ex post right to explanation of specific decisions that can logically only be given once a decision has been made (timeline problem).
“Therefore, Articles 13-14 cannot be used as evidence of an ex post right to explanation of specific decisions that can logically only be given once a decision has been made (timeline problem).29”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [29]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
A right to explanation, derived from the right of access (Article 15) or safeguards described in Article 22(3), would only apply to a narrow range of decisions 'solely based on automated processing' and with 'legal' or 'similarly significant' effects for the data subject (Article 22(1) GDPR).
“A right to explanation, derived from the right of access (Article 15) or safeguards described in Article 22(3), would only apply to a narrow range of decisions 'solely based on automated processing' and with 'legal' or 'similarly significant' effects for the data subject (Article 22(1) GDPR).”
Quote in the paperSubstantial claim - Interpretationreasoning
The change from a notification duty to an access right has important consequences for the timing of explanations required from the data controller.
“Although seemingly insignificant, the change from a notification duty to an access right has important consequences for the timing of explanations required from the data controller.”
Quote in the paperSubstantial claim - Interpretationreasoning
A right to explanation is not currently legally mandated by the requirements set in Article 22(3).
“A right to explanation is thus not currently legally mandated by the requirements set in Article 22(3).”
Quote in the paperSubstantial claim - Premisecitation
Article 12(a) of the Directive grants data subjects a right to obtain knowledge of the logic involved in any automatic processing of data concerning them, at least in the case of automated decisions referred to in Article 15(1).
“Article 12(a) of the Directive grants data subjects a right to obtain 'knowledge of the logic involved in any automatic processing of data concerning him at least in the case of the automated decisions referred to in Article 15(1)'.77”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [77]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
The phrasing of Article 15(1)h is future oriented and refers to the existence and planned scope of decision-making itself, rather than to the circumstances of a specific decision as suggested in Recital 71.
“The phrasing of Article 15(1)h is future oriented, and appears to refer to the existence and planned scope of decision-making itself, rather than to the circumstances of a specific decision as suggested in Recital 71.”
Quote in the paperSubstantial claim - Interpretationcitation
The use of future-oriented semantics in the GDPR and its terminological overlap with notification duties suggest that the GDPR intends to further limit the right of access regarding automated decision-making to explanations of system functionality.
“The use of future-oriented semantics in the GDPR (unlike the Directive which did not explicitly acknowledge a decision-making timeline), as well as its terminological overlap with notification duties, suggest that the GDPR intends to further limit the right of access regarding automated decisionmaking to explanations of system functionality.76”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [76]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Rests on an assumption: Changes in the wording and structure of GDPR provisions reflect the legislator's intention regarding the scope of the right of access.
- Premisecitation
Recital 41 of the Directive clarifies that the right of access can be limited by trade secrets and intellectual property, especially relating to software.
“Recital 41 of the Directive clarifies that the right of access can be limited by trade secrets and intellectual property, especially relating to software.”
Quote in the paperSubstantial claim0 of 1 sources checked- cites Recital 41
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
Only an ex ante explanation of system functionality is explicitly required by Articles 13(2)f and 14(2)g.
“First, only an ex ante explanation of system functionality is explicitly required by Articles 13(2)f and 14(2)g.”
Quote in the paperSubstantial claim - Interpretationcitation
The GDPR's right of access appears not to offer more protection for data subjects' interests than the Directive's right of access.
“In particular, the GDPR's right of access appears to not offer more protection for data subjects' interests than the Directive's right of access.75”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [75]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
The supposed link between notification about the logic involved, significance, and envisaged consequences of automated decision-making in Articles 13-14, and the ex post right to explanation incorrectly attributed to Article 22(3), is untenable and can be dismissed.
“The supposed link-between notification about the logic involved, significance, and envisaged consequences of automated decision-making in Articles 13-14, and the ex post right to explanation incorrectly attributed to Article 22(3) (which only features in Recital 71)-is therefore untenable and can be dismissed.”
Quote in the paperSubstantial claim - Interpretationreasoning
The right of access does not establish a right to explanation of specific automated decisions of the type currently imagined elsewhere in public discourse.
“However, the right of access does not establish a right to explanation of specific automated decisions of the type currently imagined elsewhere in public discourse.”
Quote in the paperSubstantial claim - Interpretationreasoning
This information cannot include any information about how a specific decision was made or reached, but rather addresses how the system itself functions.
“Notably this cannot include any information about how a specific decision was made or reached, but rather addresses how the system itself functions, eg its decision tree or rules, or predictions about how inputs will be processed.”
Quote in the paperSubstantial claim - Interpretationreasoning
A 'general' right to explanation, applicable to all automated decisions, would not exist even if Recital 71 were legally binding.
“We show that a 'general' right to explanation, applicable to all automated decisions, would not exist even if Recital 71 were legally binding.”
Quote in the paperSubstantial claim - Interpretationreasoning
For Article 15(1)h to be coherent as a whole, 'meaningful information about the logic involved' must be interpreted in connection with the other terms (existence of, meaningful information about significance and envisaged consequences), which are limited to explanations of system functionality.
“For Article 15(1)h to be coherent as a whole, 'meaningful information about the logic involved' must be interpreted in connection with the other terms (existence of, meaningful information about significance and envisaged consequences) used of Article 15(1)h, which are limited to explanations of system functionality.”
Quote in the paperSubstantial claim- Rests on an assumption: The GDPR's provisions should be interpreted coherently as a whole.
- Interpretationcitation
The type of explanation recognized in prior German jurisprudence and German commentary on the GDPR is limited by overriding interests of the data controller, such as protection of trade secrets or prevention of gaming the system.
“recognized in prior German jurisprudence 81 and German commentary 82 on the GDPR is limited by overriding interests of the data controller, eg protection of trade secrets, or prevention of 'gaming the system' by users.”
Quote in the paperSubstantial claim0 of 2 sources checked- cites [81]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- cites [82]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
Any future right to explanation would likely also be limited by overriding interests of the data controller.
“As indicated in the discussion of the right of access in the 1995 Directive, any future right to explanation would likely also be limited by overriding interests of the data controller.”
Quote in the paperNot a substantial claim - Interpretationreasoning
The scope of any future right to explanation enacted in relation to the safeguards specified in Article 22(3) is limited to cases meeting clause (a) or (c), namely those necessary for entering or performing a contract or with the subject's explicit consent.
“The scope of any future right to explanation enacted in relation to the safeguards specified in Article 22(3) is therefore limited to cases meeting clause (a) or (c), ie those necessary for entering or performing a contract, 106 or with the subject's explicit consent.”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [106]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
The EP wanted to restrict automated decisions on a broader basis than the EC, namely those predominantly and not only solely on automated processes.
“Following this, the EP wanted to restrict automated decisions on a broader basis than the EC, ie those predominantly and not only solely on automated processes.”
Quote in the paperSubstantial claim - Interpretationcitation
Preparation of evidence for a decision and making the decision itself are not necessarily equivalent acts.
“Preparation of evidence for a decision, and making the decision itself, are not necessarily equivalent acts.94”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [94]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationcitation
There is uncertainty whether automated processing for the preparation of a decision ultimately acted upon by a human constitutes a decision solely based on automated processing if the human does not interfere, verify, or modify the decision or decision-making rationale.
“There is still uncertainty as to whether the usage of automated processing for the preparation of a decision ultimately acted upon by a human constitutes a decision 'solely based on automated processing', if the human does not interfere, verify, or modify the decision or decision-making rationale.93”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [93]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
If consent would be necessary, it would have been enough to list the contractual exception under Article 22(2)c.
“If consent would be necessary, it would have been enough to list the contractual exception under Article 22(2)c.”
Quote in the paperSubstantial claim - Interpretationreasoning
Since in most cases the data subject has no legal right to be hired or to be approved for a credit application, cases of being denied an interview or credit by an automated process would not fall under the legal effects categories.
“Since in most cases the data subject has no legal right to be hired or to be approved for a credit application, cases of being denied an interview or credit by an automated process would not fall under these categories.102”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [102]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationcitation
In practice it may cause a burden for the data subject to prove that processing affects them significantly.
“Further, in practice it may cause a burden for the data subject to prove that processing affects them significantly.104”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [104]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
A right to explanation implemented through any of the four paths specified would similarly not apply, narrowing the right's potential applicability to a very narrow range of cases meeting all the requirements in Article 22(1).
“A right to explanation implemented through any of the four paths specified above would similarly not apply, still significantly narrowing the right's potential applicability to a very narrow range of cases meeting all the requirements in Article 22(1) and discussed in this section.”
Quote in the paperSubstantial claim - Interpretationreasoning
Legislators were contemplating a situation where data controllers make automated decisions that are necessary for a contract but without seeking consent first.
“Legislators were contemplating a situation where data controllers make automated decisions that are necessary for a contract, but without seeking consent first.”
Quote in the paperSubstantial claim- Rests on an assumption: Changes in the wording and structure of GDPR provisions reflect the legislator's intention regarding the scope of the right of access.
- Interpretationnone given
The exemption for automated decisions related to contracts raises a further limitation.
“The exemption for automated decisions related to contracts raises a further limitation.”
Quote in the paperSubstantial claim - Interpretationreasoning
A further factor would constrain the information offered as part of an explanation.
“A further factor would constrain the information offered as part of an explanation.”
Quote in the paperNot a substantial claim - Interpretationreasoning
The requirement of solely opens a loophole whereby any human involvement in a decision-making process could mean it is not automated decision-making.
“The latter requirement opens a loophole whereby any human involvement in a decision-making process could mean it is not 'automated decision-making'.92”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [92]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationcitation
Without an explanation of how the algorithm works, the rights to fair trial and effective remedy are hard to enforce because the decisions or evidence used will be impossible to contest in court.
“Without an explanation of how the algorithm works, both rights are hard to enforce, because the decisions/ evidence used will be impossible to contest in court.90”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [90]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationreasoning
The definition of automated decision-making in Article 22(1) significantly narrows the scope of any future right to explanation.
“As these constraints demonstrate, the definition of automated decision-making in Article 22(1) significantly narrows the scope of any future right to explanation.”
Quote in the paperSubstantial claim - Premisecitation
The ambiguity in Article 22(1) has existed since the Data Protection Directive 1995.
“Notably, this ambiguity has existed since the Data Protection Directive 1995.109”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [109]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Interpretationcitation
Jurisprudence and legal commentary concerning the Directive's right of access suggest that the balance between the data subject's right of access and data controllers' rights and freedoms will require limited disclosures of the logic involved in automated decision-making, primarily concerning system functionality rather than the rationale and circumstances of specific decisions.
“Jurisprudence and legal commentary concerning the Directive's right of access (see section 'Right of access in the 1995 Data Protection Directive 95/46/EC') suggest that the balance between the data subject's right of access and data controllers' rights and freedoms will require limited disclosures of the 'logic involved' in automated decision-making, primarily concerning system functionality”
Quote in the paperNot a substantial claim - Interpretationnone given
Implementation of the right of access in the 1995 Directive has shown the need for interpretation of vague provisions by Member States and national courts.
“Concerning the fourth option, implementation of the right of access in the 1995 Directive has shown the need for interpretation of vague provisions by Member States and national courts.”
Quote in the paperNot a substantial claim - Interpretationreasoning
A general right to explanation applicable to all types of automated processing would not exist.
“A 'general' right to explanation as proposed elsewhere (see 'Introduction' section), seemingly applicable to all types of automated processing, would not exist.”
Quote in the paperSubstantial claim - Premisenone given
Article 22(2) states three conditions that, if met by an automated decision-making process, cause Article 22(1) not to apply.
“In the first instance, Article 22(2) states three conditions that, if met by an automated decision-making process, cause Article 22(1) not to apply:”
Quote in the paperSubstantial claim - Interpretationreasoning
A number of further limitations are exclusive to a right to explanation derived from Article 22(3).
“In addition to the above limitations on a future right to explanation, a number of further limitations are exclusive to a right derived from Article 22(3).”
Quote in the paperSubstantial claim - Interpretationreasoning
This clause potentially excludes a significant range of cases of automated decision-making from the safeguards in Article 22(3) and any right to explanation derived from them.
“This clause potentially excludes a significant range of cases of automated decision-making from the safeguards in Article 22(3) and any right to explanation derived thereof.”
Quote in the paperSubstantial claim - Interpretationreasoning
The right can be limited for the sake of trade secrets or intellectual property rights, especially regarding copyright of software.
“The right can be limited for the sake of trade secrets or intellectual property rights, especially regarding copyright of software.”
Quote in the paperNot a substantial claim - Interpretationreasoning
Article 22(2)a envisions a situation that is different from explicit consent, which is listed as a separate exception in Article 22(2)c.
“Additionally, it is important to note that Article 22(2)a envisions a situation that is different from explicit consent (which is listed as a separate exception in Article 22(2)c).”
Quote in the paperSubstantial claim - Interpretationreasoning
An automated process must meet the Article 22(1) definition for Articles 15(1)h or 22(3) to apply, and thus for a future right to explanation established on either basis to be invoked.
“An automated process must meet this definition for Articles 15(1)h (right of access) or 22(3) to apply, and thus for a future right to explanation established on either basis to be invoked.”
Quote in the paperSubstantial claim - Interpretationreasoning
The phrase solely suggests even some nominal human involvement may be sufficient to take a decision outside automated decision-making.
“While the required level of human involvement is not clear in practice, the phrase 'solely' suggests even some nominal human involvement may be sufficient.”
Quote in the paperSubstantial claim - Interpretationreasoning
The implementation of the Directive's right of access strongly suggests that the GDPR's right of access will be far from the ex post general right to explanation of system functionality and specific decisions.
“However, the implementation of the Directive's right of access strongly suggests that the GDPR's right of access will be far from the ex post 'general' right to explanation of system functionality and specific decisions, which we have argued it is mistakenly attributed to the GDPR.”
Quote in the paperNot a substantial claim- Rests on an assumption: The implementation and jurisprudence of the Directive's right of access are a reliable guide to how the GDPR's right of access will be interpreted.
- Premisecitation
Recital 63 of the GDPR establishes that the right of access should not infringe upon the rights and freedoms of others, including data controllers.
“Recital 63 of the GDPR similarly establishes that the right of access should not infringe upon the rights and freedoms of others, including data controllers.”
Quote in the paperSubstantial claim - Interpretationnone given
Consensus has not emerged over the meaning or requirements for data controllers when explaining the logic involved in automated individual decisions.
“As noted above, consensus has not emerged over the meaning or requirements implied for data controllers when explaining the 'logic involved' in automated individual decisions.”
Quote in the paperSubstantial claim - Premisenone given
The UK Data Protection Act 1998 Article 12(2)b allows subjects to demand a new decision to be made without any way to assess the reliability of the old decision.
“This interpretation is found in the UK Data Protection Act 1998 (Article 12(2)b): subjects can demand a new decision to be made, albeit without any way to assess the reliability of the old decision.”
Quote in the paperNot a substantial claim - Interpretationreasoning
Through the right of access, the GDPR will grant a right to be informed about the existence of automated decision-making and system functionality, limited in applicability.
“Rather, through the right of access, the GDPR will grant a 'right to be informed' about the existence of automated decision-making and system functionality, limited in applicability along the lines above and those described in the following section.”
Quote in the paperSubstantial claim- Rests on an assumption: The implementation and jurisprudence of the Directive's right of access are a reliable guide to how the GDPR's right of access will be interpreted.
- Premisereasoning
The safeguards in Article 22(3) do not apply when a decision is made in accordance with Union or Member State law under Article 22(2)b.
“It is worth noting that the safeguards in 22(3) do not apply when a decision is made in accordance with Union or Member State law (Article 22(2)b).”
Quote in the paperSubstantial claim - Premisereasoning
Article 22(3) specifies that safeguards, namely the rights to human intervention, expression, and contest, only apply when automated decision-making meets Article 22(2)a or c.
“Article 22(3) specifies that safeguards (ie the rights to human intervention, expression, and contest) only apply when automated decision-making meets Article 22(2)a or c.”
Quote in the paperSubstantial claim - Premisenone given
Article 22(3) guarantees that human intervention is available for automated decisions rendered in fulfilment of a contract or with explicit consent.
“Concerning the third, Article 22(3) guarantees that human intervention is available for automated decisions rendered in fulfilment of a contract or with explicit consent (see below).”
Quote in the paperSubstantial claim - Premisecitation
The right to contest has been interpreted by Member States, in enacting the 1995 Directive, as merely a right to force a controller to make a new decision.
“The right to contest has already been interpreted by Member States, in enacting the 1995 Directive, as merely a right to force a controller to make a new decision.”
Quote in the paperNot a substantial claim - Interpretationreasoning
The scope of data processing to which Article 22 and Recital 71 applies was narrowed in the adopted version of the GDPR compared to prior drafts.
“The scope of data processing to which Article 22 (and Recital 71) applies was narrowed in the adopted version of the GDPR compared to prior drafts.”
Quote in the paperSubstantial claim - Interpretationnone given
Where a decision has no legal or significant effect, Article 22 does not apply.
“Where a decision has no legal or significant effect, Article 22 does not apply.”
Quote in the paperSubstantial claim - Interpretationnone given
Austrian jurisprudence has demonstrated that the scope of logic involved is sufficiently broad to include some elements of the rationale or circumstances of a specific decision along with system functionality, albeit limited severely by the data controller's interests.
“Austrian jurisprudence has demonstrated that the scope of 'logic involved' is sufficiently broad to include that some elements of the rationale or circumstances of a specific decision be explained along with system functionality, albeit limited severely by data controller's interests (eg trade secrets).”
Quote in the paperNot a substantial claim - Interpretationreasoning
Despite claims to the contrary, a meaningful right to explanation is not legally mandated by the GDPR.
“Despite claims to the contrary, a meaningful right to explanation is not legally mandated by the GDPR.”
Quote in the paperSubstantial claim - Interpretationreasoning
Both interpretations are viable as suggested by the split in the implementation of Article 15 in the Data Protection Directive 1995 by Member States.
“Both are viable as suggested by the split in the implementation of Article 15 in the Data Protection Directive 1995 by Member States.”
Quote in the paperSubstantial claim - Interpretationreasoning
A right to explanation of specific decisions is not legally mandated by the safeguards contained in Article 22(3), or notification duties in Articles 13 and 14.
“A right to explanation of specific decisions is not legally mandated by the safeguards contained in Article 22(3), or notification duties in Articles 13 and 14.”
Quote in the paperSubstantial claim - Interpretationreasoning
Interpreting Article 15 to introduce a right to explanation of specific decisions would not match the intended purpose of the right of access, which according to Recital 63 GDPR is meant to allow the data subject 'to be aware of, and verify, the lawfulness of processing'.
“Critically, interpreting Article 15 to introduce a right to explanation of specific decisions would not match the intended purpose of the right of access, which according to Recital 63 GDPR is meant to allow the data subject 'to be aware of, and verify, the lawfulness of processing'.”
Quote in the paperSubstantial claim - Premisereasoning
The ambiguity led Member States to implement this right and associated protections differently.
“The ambiguity led Member States to implement this right and associated protections differently.”
Quote in the paperNot a substantial claim - Interpretationreasoning
As a right, the data subject's interests in not being subjected to automated decision-making are undermined, insofar as significant effort (ie entering an objection) is required from the subject to protect her interests.
“As a right, the data subject's interests in not being subjected to automated decision-making are undermined, insofar as significant effort (ie entering an objection) is required from the subject to protect her interests.”
Quote in the paperSubstantial claim - Interpretationreasoning
Without clarification prior to enforcement, Article 22 will allow for conflicting interpretations of the rights of data subjects and controllers concerning automated decision-making across Member States.
“Without clarification prior to enforcement, Article 22 will allow for conflicting interpretations of the rights of data subjects and controllers concerning automated decision-making across Member States.”
Quote in the paperSubstantial claim - Interpretationreasoning
As it stands, a meaningful right of explanation to the rationale and circumstances of specific automated decisions is not forthcoming.
“As it stands, a meaningful right of explanation to the rationale and circumstances of specific automated decisions is not forthcoming.”
Quote in the paperSubstantial claim - Interpretationreasoning
When interpreted as a right, Article 22 creates a loophole that allows data controllers to undertake automated decision-making without meeting a requirement in Article 22(2), unless the data subject objects.
“In contrast, when interpreted as a right, Article 22 creates a loophole that allows data controllers to undertake automated decision-making without meeting a requirement in Article 22(2), unless the data subject objects.”
Quote in the paperSubstantial claim - Interpretationreasoning
Article 22 interpreted as a prohibition offers greater protection to the interests of data subjects by prohibiting all automated decision-making not meeting a requirement of Article 22(2).
“Article 22 interpreted as a prohibition offers greater protection to the interests of data subjects by prohibiting all automated decision-making not meeting a requirement of Article 22(2).”
Quote in the paperSubstantial claim - Interpretationreasoning
Under a prohibition interpretation, data subjects do not need to act to prevent automated decision-making, but are rather protected by default.
“Data subjects do not need to act to prevent automated decision-making, but are rather protected by default.”
Quote in the paperSubstantial claim
- Classified as probably not a substantial claim. 81
- May combine two claims. 35
Classified as probably not a substantial claim. May combine two claims.
FindingreasoningThe safeguards specified in Recital 71 are almost identical to those in Article 22(3), with the significant difference of the further inclusion of a right 'to obtain an explanation of the decision reached after such assessment' in Recital 71.
“The safeguards specified in Recital 71 are almost identical to those in Article 22(3), with the significant difference of the further inclusion of a right 'to obtain an explanation of the decision reached after such assessment' in Recital 71.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
FindingreasoningArticle 22 GDPR has not greatly changed from Article 15 of the Directive.
“Although Article 22 GDPR has not greatly changed from Article 15 of the Directive, a few changes are still noteworthy.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
Findingnone givenArticle 15(1)h is identical to Articles 13(2)f and 14(2)h.
“Article 15(1)h is identical to Articles 13(2)f and 14(2)h: data subjects are granted a right to be informed about the existence of automated decision-making and to obtain meaningful information about the significance, envisaged consequences, and logic involved.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing). May combine two claims.
FindingcitationArticles 13-14 create notification duties for data controllers, while Article 15 establishes a corresponding right of access for data subjects.
“Articles 13-14 create notification duties for data controllers, while Article 15 establishes a corresponding right of access for data subjects.34”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [34]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
May combine two claims.
FindingreasoningArticles 13(2)f and 14(2)g apply only to Articles 22(1) and 22(4), which do not address safeguards against automated decision-making.
“Articles 13(2)f and 14(2)g apply only to Articles 22(1) and 22(4), which do not address safeguards against automated decision-making.”
Quote in the paperSubstantial claimClassified as probably not a substantial claim. May combine two claims.
FindingreasoningThe articles are a unit, insofar as they provide the data subject access to identical information, and use the same language.
“The articles are a unit, insofar as they provide the data subject access to identical information, and use the same language.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S3 (load-bearing), S4 (based).
Findingnone givenIt is no longer necessary that the data subject requests the contract in order for automated decision-making to be lawful.
“Finally, as opposed to the provisions in Article 15 of the Directive, it is no longer necessary that the data subject requests the contract in order for automated decisionmaking to be lawful.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
Findingnone givenExplicit consent is included as a case in which automated decision-making is allowed (Article 22(2)c).
“Secondly, explicit consent is included as a case in which automated decision-making is allowed (Article 22(2)c).”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim. May combine two claims.
Findingnone givenArticles 13 and 14 GDPR specify notification duties for data controllers concerning the processing of data collected from the data subject (Article 13) or from a third party (Article 14).
“Articles 13 and 14 GDPR specify notification duties for data controllers concerning the processing of data collected from the data subject (Article 13) or from a third party (Article 14).”
Quote in the paperSubstantial claimMay combine two claims.
FindingreasoningThe right of access is dependent upon the request of the data subject and has no deadline; the 'timeline problem' of Articles 13(2)f and 14(2)g does not apply.
“However, the right of access is dependent upon the request of the data subject and has no deadline; the 'timeline problem' of Articles 13(2)f and 14(2)g does not apply.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
FindingreasoningArticle 22(3) additionally names contesting the decision and the right to obtain human intervention as suitable measures.
“Article 22(3) additionally names contesting the decision and the right to obtain human intervention as suitable measures.”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim.
Findingnone givenA 'right to explanation' does not appear in Article 15 of the Data Protection Directive 1995.
“As with the GDPR, a 'right to explanation' does not appear in Article 15 of the Directive (see Figure 2), which addresses automated individual decisions.”
Quote in the paperSubstantial claimMay combine two claims.
FindingreasoningThe 1995 Directive's right of access has generally not been interpreted as granting a right to explanation of specific decisions already reached, as it is not part of the safeguards at the time automated decisions are made in Article 15(2)a of the Directive; this distinction is comparable to the difference between Articles 15 and 22 of the GDPR.
“Notably, the Directive's right of access has generally not been interpreted as granting a right to explanation of specific decisions already reached, as it is not part of the safeguards at the time automated decisions are made in Article 15(2)a of the Directive; this distinction is comparable to the difference between Articles 15 and 22 of the GDPR.”
Quote in the paperSubstantial claimMay combine two claims.
FindingreasoningData subjects are granted a right to be informed about the existence of automated decision-making and to obtain meaningful information about the significance, envisaged consequences, and logic involved.
“data subjects are granted a right to be informed about the existence of automated decision-making and to obtain meaningful information about the significance, envisaged consequences, and logic involved.”
Quote in the paperSubstantial claimMay combine two claims.
FindingcitationThe EP wanted to include a right to explanation in Article 20, whereas the Council would have preferred to have the right to explanation in Recital 58.
“Specifically, the EP wanted to include a right to explanation in Article 20,foot_6 whereas the Council would have preferred to have the right to explanation in Recital 58.115”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [115]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S3 (load-bearing), S4 (based).
Findingnone givenAs our examination of the 1995 Directive shows, explanations granted under the right of access are normally limited to system functionality and significantly limited to protect data controller interests.
“As our examination of the 1995 Directive shows, explanations granted under the right of access are normally limited to system functionality and significantly limited to protect data controller interests.”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim.
PremisecitationThe right to explanation, as popularly proposed, is thought to grant an explanation of specific automated decisions, after such a decision has been made.
“The right to explanation, as popularly proposed, is thought to grant an explanation of specific automated decisions, after such a decision has been made.9”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [9]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
May combine two claims.
InterpretationreasoningThe GDPR does not, in its current form, implement a right to explanation, but rather a limited 'right to be informed'.
“We argue that the GDPR does not, in its current form, implement a right to explanation, but rather what we term a limited 'right to be informed'.”
Quote in the paperSubstantial claimMay combine two claims.
InterpretationreasoningData subjects must be provided with information about how an automated decision-making system works in general, for which purposes, and with what predicted impact, before automated decisions are made.
“The language used suggests that data subjects must be provided with information about how an automated decision-making system works in general, for which purposes, and with what predicted impact, before automated decisions are made.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S3 (load-bearing), S4 (based).
Interpretationnone givenA relative lack of jurisprudence across Member States has not helped clarify and unify the requirements.
“A relative lack of jurisprudence across Member States has not helped clarify and unify the requirements.”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim.
InterpretationreasoningIf an explanation of specific automated decisions was intended to be granted by Article 15(1)h, as in Recital 71, the usage of different language between the two would be odd.
“If an explanation of specific automated decisions was intended to be granted by Article 15(1)h, as in Recital 71, the usage of different language between the two would be odd.”
Quote in the paperSubstantial claimClassified as probably not a substantial claim.
InterpretationreasoningIf Article 15(1)h were applied to decisions already made, the phrasing becomes incoherent.
“If applied to decisions already made, the phrasing becomes incoherent.”
Quote in the paperSubstantial claimClassified as probably not a substantial claim.
InterpretationreasoningThe phrasing of Article 15 GDPR points towards a general explanation of the existence and functionality of automated decision-making systems.
“The phrasing of Article 15 GDPR in particular points towards a general explanation of the existence and functionality of automated decision-making systems.”
Quote in the paperSubstantial claimClassified as probably not a substantial claim.
InterpretationreasoningThe ambiguity and limited scope of the 'right not to be subject to automated decision-making' contained in Article 22 raises questions over the protection actually afforded to data subjects.
“The ambiguity and limited scope of the 'right not to be subject to automated decision-making' contained in Article 22 (from which the alleged 'right to explanation' stems) raises questions over the protection actually afforded to data subjects.”
Quote in the paperSubstantial claimClassified as probably not a substantial claim.
InterpretationreasoningThe GDPR phrase requires that the data subject be informed merely about the usage and functionality of automated decision-making methods.
“As argued above, this phrase in the GDPR requires that the data subject be informed merely about the usage and functionality of automated decision-making methods.”
Quote in the paperSubstantial claimMay combine two claims.
InterpretationreasoningThe GDPR lacks precise language as well as explicit and well-defined rights and safeguards against automated decision-making, and therefore runs the risk of being toothless.
“These problems show that the GDPR lacks precise language as well as explicit and well-defined rights and safeguards against automated decision-making, and therefore runs the risk of being toothless.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S2 (checkable).
InterpretationreasoningThe wording suggests an even stronger intention to limit the right to explanations of system functionality, not the rationale and circumstances of specific decisions.
“Again, this suggests an even stronger intention to limit the right to explanations of system functionality, not the rationale and circumstances of specific decisions.”
Quote in the paperNot a substantial claim- Rests on an assumption: Changes in the wording and structure of GDPR provisions reflect the legislator's intention regarding the scope of the right of access.
Probably not a substantial claim: may not pass S3 (load-bearing).
InterpretationcitationFor fully disclosed simplistic or linear models, this may show how specific decisions would be reached in the future.
“For fully disclosed simplistic or linear models, this may show how specific decisions would be reached in the future.31”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [31]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S3 (load-bearing).
PremisecitationGerman commentary on the GDPR says it is sufficient to be informed about the envisaged consequences in a very simple manner.
“According to German commentary 79 on the GDPR, it is sufficient to be informed about the envisaged consequences in a very simple manner.”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [79]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Classified as probably not a substantial claim. May combine two claims.
InterpretationreasoningThe data subject can request this information at any time, including after an automated decision has been made, making an ex post explanation of the rationale of specific decisions plausible.
“At first glance, the data subject can request this information at any time, including after an automated decision has been made, making an ex post explanation of the rationale of specific decisions plausible.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S4 (based).
Interpretationnone givenThe Directive's right of access provides an explanation of the system's functionality which has been heavily limited by trade secrets.
“The Directive's right of access provides an explanation of the system's functionality which has been heavily limited by trade secrets.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S4 (based).
Interpretationnone givenThere is a critical ambiguity of language that allows the broader 'right not to be subject to automated decision-making' (Article 22 GDPR) to be interpreted either as a prohibition, or right to object.
“including the impact of a critical ambiguity of language that allows the broader 'right not to be subject to automated decision-making' (Article 22 GDPR) to be interpreted either as a prohibition, or right to object.”
Quote in the paperNot a substantial claimMay combine two claims.
InterpretationcitationThe information offered by data controllers will address general system functionality and could be heavily curtailed to protect the controller's interests.
“Rather, the information offered by data controllers will address general system functionality, and could be heavily curtailed to protect the controller's interests (eg trade secrets, intellectual property; see Recital 63).85”
Quote in the paperSubstantial claim0 of 1 sources checked- cites [85]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S3 (load-bearing).
InterpretationcitationQuestions can be raised over what constitutes legal effects or similarly significant effects required for Article 22 to apply.
“Questions can also be raised over what constitutes 'legal effects' or 'similarly significant effects' 100 required for Article 22 to apply.”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [100]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S3 (load-bearing).
Premisenone givenBygrave argues that a relative notion of solely is required for the phrase to be meaningful.
“In contrast, Bygrave argues that a relative notion of 'solely' is required for the phrase to be meaningful.”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim. May combine two claims.
Premisenone givenAutomated decision-making must have legal or other significant effects, with a decision based solely on automated processing of data under Article 22(1).
“Automated decision-making must have 'legal or other significant effects', with a decision based 'solely on automated processing of data' (Article 22(1)).”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing).
InterpretationreasoningGiven that the reference to logic involved occurs in both the Directive and GDPR, it is plausible but unlikely that future legal interpretation of the right of access could establish a right to explanation of specific decisions.
“Given that the reference to 'logic involved' occurs in both the Directive and GDPR, it is plausible (but unlikely) that future legal interpretation of the right of access could establish a right to explanation of specific decisions.”
Quote in the paperNot a substantial claim- Rests on an assumption: The implementation and jurisprudence of the Directive's right of access are a reliable guide to how the GDPR's right of access will be interpreted.
Classified as probably not a substantial claim.
PremisecitationArticle 20(5) of the EP's proposed amendments to the EC's draft adds the phrase predominantly to the measures to which the Article would apply.
“Article 20(5) of the EP's proposed amendments 98 to the EC's draft 99 adds the phrase 'predominantly' to the measures to which the Article would apply”
Quote in the paperSubstantial claim0 of 2 sources checked- cites [98]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- cites [99]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S3 (load-bearing).
InterpretationcitationThe specific disclosure requirements of Recital 63 require interpretation.
“As with the right of access itself, the specific disclosure requirements of Recital 63 require interpretation.105”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [105]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S2 (checkable).
InterpretationreasoningThe right to obtain human intervention, express views or contest a decision is meaningless if the data subject cannot understand how the contested decision was taken.
“On this basis, one may argue that, although it is certainly not explicit in the phrasing of Article 22(3), the right to obtain human intervention, express views or contest a decision is meaningless if the data subject cannot understand how the contested decision was taken.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing). May combine two claims.
PremisecitationGerman commentary on the GDPR has suggested that the suitable measures called for in Article 22(2)b do not include disclosure of the algorithm used due to the risk posed to trade secrets, but that measures to minimize and correct discrimination and biases should be implemented.
“German commentary on the GDPR has suggested that the 'suitable measures' called for in Article 22(2)b do not include the disclosure of the algorithm used due to the risk posed to trade secrets; however, measures to minimize and correct discrimination and biases should be implemented.107”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [107]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S3 (load-bearing).
PremisereasoningRecital 71 provides some guidance by describing certain situations of significance, such as online credit applications and e-recruiting practices.
“Recital 71 provides some guidance, as it describes certain situations of 'significances' eg online credit applications and e-recruiting practices.”
Quote in the paperNot a substantial claimMay combine two claims.
InterpretationreasoningArticle 22 does not define when automated decision-making is necessary for entering or performing a contract, which runs the risk of necessity being defined solely by the data controller.
“Article 22 does not define when automated decision-making is 'necessary' for entering or performing a contract, which runs the risk of 'necessity' being defined solely by the data controller.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S1 (asserted).
PremisecitationAccording to commentators, data controllers do not need to explain fully the rationale and circumstances of a specific decision to provide data subjects with meaningful information about the logic involved under Article 15(1)h GDPR.
“According to commentators, data controllers do not need to explain fully the rationale and circumstances of a specific decision to provide data subjects with 'meaningful information about the logic involved' (Article 15(1)h GDPR).”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
PremisecitationSchmidt-Wudy argues that if necessary to assess the accuracy of data processing, information about the algorithm could be given, with appropriate limitations to protect trade secrets.
“Schmidt-Wudy argues that if necessary to assess the accuracy of data processing, information about the algorithm could be given, with appropriate limitations to protect trade secrets.87”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [87]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
May combine two claims.
InterpretationreasoningThis structure suggests that there can be situations in which the data subject does not consent to an automated decision and, apart from the general notification requirements and right of access in Articles 13-15, does not know about the decision.
“This structure suggests that there can be situations in which the data subject does not consent to an automated decision and, apart from the general notification requirements and right of access in Articles 13-15, does not know about the decision.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S3 (load-bearing). May combine two claims.
InterpretationreasoningOf the four scenarios for introducing a right to explanation, the third and fourth seem to be the most plausible at the moment.
“Of these scenarios, the third and fourth seem to be the most plausible at the moment.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing), S4 (based).
Interpretationnone givenIt is not clear how the Article 22 provision in the GDPR will be interpreted in the future.
“It is not clear how this provision in the GDPR will be interpreted in the future.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing).
InterpretationreasoningA broad reading of Article 22(3), according to which an explanation is required to contest a decision, would strengthen the right to contest.
“A broad reading of Article 22(3), according to which an explanation is required to contest a decision, would strengthen the right to contest.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
Interpretationnone givenInterpretation of Article 15 of the Directive, which was also limited to decisions based solely on automated data processing, does not provide clarification.
“Interpretation of Article 15 of the Directive, which was also limited to decisions 'based solely on automated data processing', does not provide clarification.”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim. May combine two claims.
InterpretationreasoningArticle 22(1) GDPR can be interpreted in two ways: as a prohibition or as a right to object to automated decision-making.
“Due to its language ('a right not to'), Article 22(1) can be interpreted in two ways: as a prohibition 108 or a right to object to automated decision-making.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
InterpretationreasoningThe two interpretations of Article 22(1) are differentiated by whether action is required by the data subject to restrict automated decision-making.
“These interpretations are differentiated by whether action is required by the data subject to restrict automated decision-making.”
Quote in the paperNot a substantial claimMay combine two claims.
InterpretationreasoningAutomated decision-making that does not meet the Article 22(1) definition would not be constrained by Article 22, the notification duties, or the right of access, including information regarding the logic involved.
“Automated decision-making that does not meet the definition provided in Article 22(1) would not be constrained by provisions of Article 22, or the additional measures required as part of notification duties (Article 13(2)f and 14(2)g) or the right of access (Article 15(1)h), including information regarding the 'logic involved'”
Quote in the paperSubstantial claimClassified as probably not a substantial claim.
PremisecitationRecital 63 notes that the result of those considerations should not be a refusal to provide all information to the data subject.
“The Recital notes that: the result of those considerations should not be a refusal to provide all information to the data subject.”
Quote in the paperSubstantial claimMay combine two claims.
InterpretationreasoningData controllers are therefore allowed to decide that automated decision-making is necessary for contractual obligations, while the data subject is unable to object to it.
“Data controllers are therefore allowed to decide that automated decision-making is necessary for contractual obligations, while the data subject is unable to object to it.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
Premisenone givenPaal notes that the purpose of Article 15 GDPR is to allow data subjects to be informed about the usage and functionality of automated decision-making.
“Paal also notes that the purpose of Article 15 GDPR is to allow data subjects to be informed about the usage and functionality of automated decision-making.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S1 (asserted), S3 (load-bearing).
PremisecitationAccording to Bygrave's position, decisions formally attributed to humans but originating from an automated data-processing operation whose result is not actively assessed before being formalised as a decision would fall under the scope of automated decision-making.
“According to this position, decisions formally attributed to humans, but originating 'from an automated data-processing operation the result of which is not actively assessed by either that person or other persons before being formalised as a decision', would fall under the scope of 'automated decision-making'.97”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [97]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S3 (load-bearing), S4 (based).
Interpretationnone givenRecent commentaries on the GDPR follow the general interpretation and prior jurisprudence on the right of access in the 1995 Directive.
“These recent commentaries on the GDPR follow the general interpretation and prior jurisprudence on the right of access in the 1995 Directive.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing), S4 (based).
Interpretationnone givenSuch cases could be considered to have similarly significant effects.
“Admittedly, such cases could be considered to have 'similarly significant' effects.”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim.
InterpretationreasoningWith predominantly not being adopted in the final text of the GDPR, it would appear the strict reading of solely was intended.
“With 'predominantly' not being adopted in the final text of the GDPR, it would appear the strict reading of 'solely' was intended.”
Quote in the paperSubstantial claim- Rests on an assumption: Changes in the wording and structure of GDPR provisions reflect the legislator's intention regarding the scope of the right of access.
Probably not a substantial claim: may not pass S1 (asserted), S3 (load-bearing).
PremisecitationMartini believes that automated processing of data for assistance to make a decision or preparation of a decision is not within the scope of Article 22.
“Martini believes that automated processing of data for 'assistance to make a decision' or 'preparation of a decision' is not within the scope of Article 22. 95”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [95]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
May combine two claims.
InterpretationreasoningIn this case, the data subject retains the right to contest, express views or obtain human intervention for a decision reached under Article 22(3), but not to object to it being made in the first place.
“In this case, the data subject retains the right to contest, express views or obtain human intervention for a decision reached under Article 22(3), but not to object to it being made in the first place.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing).
InterpretationreasoningDespite aiming to unify data protection law across the Member States, the GDPR's right of access will need to be similarly interpreted and tested.
“Despite aiming to unify data protection law across the Member States, the GDPR's right of access will need to be similarly interpreted and tested.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
Interpretationnone givenThe type of information to be provided is not specified.
“However, the type of information to be provided is not specified.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable). May combine two claims.
InterpretationcitationThe term similarly significant is vague and requires interpretation; significance varies on the perception of the data subject, whereas impacts on legal status can be determined according to the letter of the law.
“However, the term 'similarly significant' is itself vague and requires interpretation; significance varies on the perception of the data subject (effects of receiving a rejection letter will depend on the economic situation of the data subject, for instance), whereas impacts on legal status can be determined according to the letter of the law.103”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [103]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S3 (load-bearing).
Interpretationnone givenThe strict reading of solely by Martini was reflected in the SCHUFA judgements.
“The strict reading of 'solely' by Martini was reflected in the SCHUFA judgements already discussed (see section 'Right of access in the 1995 Data Protection Directive 95/46/EC').”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim.
InterpretationreasoningThe phrase a decision based solely on automated processing proved a point of contention between the EC and EP drafts.
“The phrase 'a decision based solely on automated processing' proved a point of contention between the EC and EP drafts.”
Quote in the paperSubstantial claimClassified as probably not a substantial claim.
InterpretationreasoningAt best, data subjects will be granted a 'right to be informed' about the existence of automated decision-making and system functionality.
“At best, data subjects will be granted a 'right to be informed' about the existence of automated decision-making and system functionality.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing), S4 (based).
Interpretationnone givenEven if a right to explanation is legally granted in the future, the feasibility and practical requirements to offer explanations to data subjects remain unclear.
“Even if a right to explanation is legally granted in the future, the feasibility and practical requirements to offer explanations to data subjects remain unclear.”
Quote in the paperNot a substantial claimMay combine two claims.
Premisenone givenThe UK has a different model: data subjects are entitled to request that no automated decision is made about them, but not in the case of so-called 'exempt decisions'.
“The UK has a different model: data subjects are entitled to request that no automated decision is made about them, but not in the case of so-called 'exempt decisions'.”
Quote in the paperNot a substantial claimMay combine two claims.
InterpretationreasoningAs it stands, transparent and accountable automated decisionmaking is not yet guaranteed by the GDPR; nor is a right to explanation of specific decisions forthcoming.
“As it stands, transparent and accountable automated decisionmaking is not yet guaranteed by the GDPR; nor is a right to explanation of specific decisions forthcoming.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing), S4 (based).
Interpretationnone givenWhat counts as a meaningful explanation for one individual or group may not be meaningful for another.
“What counts as a meaningful explanation for one individual or group may not be meaningful for another; requirements for 'meaningful explanations' must be set if a legal right to explanation is to be practically useful.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
InterpretationreasoningThe placement of the right to explanation in non-binding Recital 71 appears to be a purposeful change deliberated in trilogue.
“The placement of the right to explanation in non-binding Recital 71 appears to be a purposeful change deliberated in trilogue.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable), S4 (based).
InterpretationreasoningThe rights to contest a decision, to obtain human intervention or to express views granted in Article 22(3) may be meaningless if the data subject cannot understand how the contested decision was made.
“The rights to contest a decision, to obtain human intervention or to express views granted in Article 22(3) may be meaningless if the data subject cannot understand how the contested decision was made.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable). May combine two claims.
InterpretationreasoningThe ambiguity of the right not to be subject to automated decision-making (Article 22), and the loopholes and weaknesses it creates, shows that the GDPR is lacking precise language and explicit and well-defined rights and safeguards, and therefore runs the risk of being toothless.
“The ambiguity of the right not to be subject to automated decision-making (Article 22), and the loopholes and weaknesses it creates, shows that the GDPR is lacking precise language and explicit and well-defined rights and safeguards, and therefore runs the risk of being toothless.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing).
Premisenone givenRecital 71 only names two examples of such effects: automatic refusal of an online credit application and e-recruiting practices.
“Recital 71 only names two examples of such effects: automatic refusal of an online credit application and e-recruiting practices.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing).
InterpretationcitationThe right to explanation is also not the only way to achieve accountability and transparency in automated decision-making.
“The right to explanation is also not the only way to achieve accountability and transparency in automated decision-making.126”
Quote in the paperNot a substantial claim0 of 1 sources checked- cites [126]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S2 (checkable).
InterpretationreasoningThere is still uncertainty if the usage of automated processes for the preparation of a decision constitutes solely automated processes, if the human that takes the final decision does not wish to interfere or to adopt the decision.
“There is still uncertainty if the usage of automated processes for the preparation of a decision constitutes solely automated processes, if the human that takes the final decision does not wish to interfere or to adopt the decision.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing).
InterpretationreasoningWhich interpretation will win out in the implementation of the GDPR in 2018 is not yet clear.
“Which interpretation will win out in the implementation of the GDPR in 2018 is not yet clear.”
Quote in the paperNot a substantial claim- Rests on an assumption: The GDPR will come into force in 2018.
Probably not a substantial claim: may not pass S3 (load-bearing).
Premisenone givenArticle 22(2)a names this case as an exception of either the prohibition of automated decision-making or the right to object to automated decision-making.
“Article 22(2)a names this case as an exception of either the prohibition of automated decision-making or the right to object to automated decision-making.”
Quote in the paperNot a substantial claimMay combine two claims.
InterpretationreasoningArticle 22 therefore roughly favours the interests of data subjects when interpreted as a prohibition, and the interests of data controllers when interpreted as a right.
“Article 22 therefore roughly favours the interests of data subjects when interpreted as a prohibition, and the interests of data controllers when interpreted as a right.”
Quote in the paperSubstantial claimMay combine two claims.
InterpretationreasoningDue to similarities of language and content between Article 15 of the Directive and Article 22 GDPR, the varying implementation of Article 15 as a prohibition or right to object by Member states supports the interpretation that Article 22 is ambiguous and can be read as a prohibition or right to object.
“Due to the similarities of language and content between Article 15 of the Directive and Article 22 GDPR, the varying implementation of Article 15 as a prohibition or right to object by Member states supports the interpretation that Article 22 is ambiguous and can be read as a prohibition or right to object.”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim.
InterpretationreasoningAs the GDPR is intended to unify data protection law across all European Member States, the interpretation of Article 22 as a prohibition or right to object is critically important.
“As the GDPR is intended to unify data protection law across all European Member States, the interpretation of Article 22 as a prohibition or right to object is critically important.”
Quote in the paperSubstantial claim- Rests on an assumption: The GDPR is intended to unify data protection law across all European Member States.
Probably not a substantial claim: may not pass S3 (load-bearing). May combine two claims.
InterpretationreasoningBoth the right of access and any future right to explanation will face significant limitations due to the sensitivity of trade secrets and intellectual property rights.
“Both the right of access and any future right to explanation will face significant limitations due to the sensitivity of trade secrets and intellectual property rights.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S4 (based).
InterpretationreasoningFurther restrictions on a right to explanation derived from Article 22(3) depend upon the prevailing interpretation of Article 22 as a prohibition or a right to object.
“Further restrictions on a right to explanation derived from Article 22(3) depend upon the prevailing interpretation of Article 22 as a prohibition or a right to object.”
Quote in the paperNot a substantial claimMay combine two claims.
InterpretationreasoningThe GDPR's right of access provides a right to explanation of system functionality, what we call a 'right to be informed', restricted by the interests of data controllers and future interpretations of Article 15.
“However, the GDPR's right of access provides a right to explanation of system functionality, what we call a 'right to be informed', restricted by the interests of data controllers and future interpretations of Article 15.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing), S4 (based).
Premisenone givenAs proven by the 1995 Directive, the right of access is ambiguous.
“As proven by the 1995 Directive, the right of access is ambiguous.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S3 (load-bearing). May combine two claims.
InterpretationreasoningUnder a prohibition interpretation, Supervisory Authorities would shoulder the burden of enforcing Article 22 by ensuring automated decision-making is carried out legally, and could levy penalties and fines in cases of illegal decision-making.
“Supervisory Authorities would shoulder the burden of enforcing Article 22 by ensuring automated decision-making is carried out legally, and could levy penalties and fines in cases of illegal decision-making.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable), S4 (based).
InterpretationreasoningGiven the proliferation of automated decision-making and automated processing of data to support human decision-making (ie 'not solely'), this is a critical gap in transparency and accountability.
“Given the proliferation of automated decision-making and automated processing of data to support human decision-making (ie 'not solely'), this is a critical gap in transparency and accountability.”
Quote in the paperNot a substantial claim- Rests on an assumption: Automated decision-making and automated processing of data to support human decision-making are proliferating.
May combine two claims.
InterpretationreasoningThe GDPR appears to give strong protection against automated decisionmaking but, as it stands, the protections may prove ineffectual.
“The GDPR appears to give strong protection against automated decisionmaking but, as it stands, the protections may prove ineffectual.”
Quote in the paperSubstantial claimClassified as probably not a substantial claim.
Premisenone givenArticle 22 only applies for automated decisionmaking with 'legal effects' or 'similarly significant effects'.
“Article 22 only applies for automated decisionmaking with 'legal effects' or 'similarly significant effects'.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing). May combine two claims.
InterpretationreasoningSince it is likely that the necessity of such measures will be defined by the data controller and lit (a) does not require consent of the data subject, this exemption runs the risk of weakening the rights of data subjects.
“Since it is likely that the necessity of such measures will be defined by the data controller and lit (a) does not require consent of the data subject (since this is a separate exception listed under lit (c), this exemption runs the risk of weakening the rights of data subjects.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S4 (based).
Premisenone givenThere is a potential loophole by which nominal involvement of a human at any stage of the automated process means the process is not solely automated.
“The potential loophole (similarly seen in the German SCHUFA judgements), by which nominal involvement of a human at any stage of the automated process means the process is not solely automated, should be closed.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing).
InterpretationreasoningAs the ambiguities highlighted in these recommendations indicate, the GDPR can be a toothless or powerful mechanism to protect data subjects depending on its eventual legal interpretation.
“As the ambiguities highlighted in these recommendations indicate, the GDPR can be a toothless or powerful mechanism to protect data subjects depending on its eventual legal interpretation.”
Quote in the paperNot a substantial claimClassified as probably not a substantial claim.
InterpretationreasoningIf Article 22 is interpreted as a prohibition, data controllers will not be allowed to make automated decisions about a data subject until one of the three requirements specified in Article 22(2) is met.
“If Article 22 is interpreted as a prohibition, data controllers will not be allowed to make automated decisions about a data subject until one of the three requirements specified in Article 22(2) (necessary to enter or to perform a contract, authorized by law, or explicit consent) is met.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S2 (checkable).
InterpretationreasoningResolving the ambiguity prior to 2018 is critical, as the two interpretations have very different consequences for data subjects and data controllers.
“Resolving the ambiguity prior to 2018 is critical, as the two interpretations have very different consequences for data subjects and data controllers.”
Quote in the paperNot a substantial claim- Rests on an assumption: The GDPR will come into force in 2018.
Classified as probably not a substantial claim.
InterpretationreasoningAny future right to explanation will further be constrained by the definition of 'automated decision-making' in Article 22(1), which is limited to decisions based solely on automated processing with legal or similarly significant effects for the data subject.
“Any future right to explanation will further be constrained by the definition of 'automated decision-making' in Article 22(1), which is limited to decisions based solely on automated processing with legal or similarly significant effects for the data subject.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing).
InterpretationcitationThe effectiveness of the new framework will largely be determined by Supervisory Authorities, the Article 29 Working Party, the European Data Protection Board, the European Data Protection Supervisor, its Ethics Advisory Group, as well as national courts and their future judgments.
“The effectiveness of the new framework will largely be determined by Supervisory Authorities, the Article 29 Working Party, the European Data Protection Board, the European Data Protection Supervisor, its Ethics Advisory Group, 129 as well as national courts and their future judgments.130”
Quote in the paperNot a substantial claim0 of 2 sources checked- cites [129]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- cites [130]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
Probably not a substantial claim: may not pass S4 (based).
Premisenone givenArticle 22 is limited in applicability to decisions based solely on automated processing.
“Article 22 is limited in applicability to decisions based solely on automated processing.”
Quote in the paperNot a substantial claimMay combine two claims.
InterpretationreasoningOnce an objection is entered, decision-making must be shown to meet one of the Article 22(2) requirements or must stop altogether.
“Once an objection is entered, decision-making must be shown to meet one of these requirements or must stop altogether.”
Quote in the paperSubstantial claimProbably not a substantial claim: may not pass S2 (checkable), S4 (based).
InterpretationreasoningConflicts may soon become inevitable because the two interpretations protect very different interests.
“Conflicts may soon become inevitable because the two interpretations protect very different interests.”
Quote in the paperNot a substantial claimProbably not a substantial claim: may not pass S2 (checkable), S4 (based).
Interpretationnone givenThe language and meaning of core concepts in Article 15 is ambiguous.
“The language and meaning of core concepts in Article 15 is ambiguous.”
Quote in the paperNot a substantial claim
The paper relies on this without support.
The GDPR's provisions should be interpreted coherently as a whole.
“For Article 15(1)h to be coherent as a whole, 'meaningful information about the logic involved' must be interpreted in connection with the other terms (existence of, meaningful information about significance and envisaged consequences) used of Article 15(1)h, which are limited to explanations of system functionality.”
The paper relies on this without support.
Changes in the wording and structure of GDPR provisions reflect the legislator's intention regarding the scope of the right of access.
“The change of wording indicates that the intention of the right of access in the GDPR is to grant access to information about the 'usage' and functionality of such automated decision-making.”
The paper relies on this without support.
The implementation and jurisprudence of the Directive's right of access are a reliable guide to how the GDPR's right of access will be interpreted.
“However, the implementation of the Directive's right of access strongly suggests that the GDPR's right of access will be far from the ex post 'general' right to explanation of system functionality and specific decisions, which we have argued it is mistakenly attributed to the GDPR.”
The paper relies on this without support.
The GDPR is intended to unify data protection law across all European Member States.
“As the GDPR is intended to unify data protection law across all European Member States, the interpretation of Article 22 as a prohibition or right to object is critically important.”
The paper relies on this without support.
Automated decision-making and automated processing of data to support human decision-making are proliferating.
“Given the proliferation of automated decision-making and automated processing of data to support human decision-making (ie 'not solely'), this is a critical gap in transparency and accountability.”
The paper relies on this without support.
The GDPR will come into force in 2018.
“Resolving the ambiguity prior to 2018 is critical, as the two interpretations have very different consequences for data subjects and data controllers.”
Claims other papers make about this one
Each is checked against this paper’s own text: does it say what the citing paper says it does?
Often, the supposed human oversight is limited or purely formal, undermining the effectiveness of the protection afforded by Article 22 GDPR.
“Often, the supposed human oversight is limited or purely formal, undermining the effectiveness of the protection afforded by Article 22 GDPR.”
From Allocating Responsibility in Autonomous AI Systems: A Tiered Governance Model Under EU Regulation (2026) · cites this paper as Wachter et al. 2017
The section on limitations to Article 22 safeguards says nominal human involvement may take a predominantly automated decision outside those safeguards, and the recommendation to clarify Article 22(1) calls this a potential loophole (page not available in our copy). The paper does not establish that limited or purely formal oversight occurs often; it also describes the legal effect as uncertain. (LLM, conf=0.86)
Experimental — accuracy not yet measuredMany automated systems do not clearly show whether meaningful human review has genuinely taken place.
“Wachter et al. (2017) note that many automated systems do not clearly show whether meaningful human review has genuinely taken place.”
From Allocating Responsibility in Autonomous AI Systems: A Tiered Governance Model Under EU Regulation (2026) · cites this paper as Wachter et al. 2017
The section on limitations of Articles 15 and 22 says the required level of human involvement is unclear in practice and that nominal involvement may be enough to take a decision outside the rules on solely automated processing. The section proposing clarification of Article 22(1) likewise questions whether a human who does not intervene counts. These passages support uncertainty about what constitutes meaningful human review, but do not establish that many systems fail to show whether such review actually occurred. Page numbers are not available in our copy. (LLM, conf=0.83)
Experimental — accuracy not yet measuredIf a review is purely procedural and does not involve any real assessment of the output, responsibility for any resulting harm stays with the deployer.
“If that review is purely procedural and does not involve any real assessment of the output, responsibility for any resulting harm stays with the deployer (Wachter et al. 2017; Court of Justice of the European Union 2023b, Case C-634/21, OQ v Land Hessen 2023).”
From Allocating Responsibility in Autonomous AI Systems: A Tiered Governance Model Under EU Regulation (2026) · cites this paper as Wachter et al. 2017
The section on limitations of Articles 15 and 22 discusses nominal human involvement and a reviewer who does not interfere with, verify, or modify an automated decision. That supports the distinction between procedural review and real assessment, but the paper does not say that responsibility for resulting harm stays with the deployer. No page number is available in our copy. (LLM, conf=0.84)
Experimental — accuracy not yet measuredAccording to the counterargument, the nature of the explanation required by the GDPR is limited to being an 'ex ante' explanation preceding a specific decision.
“According to this counterargument, the nature of the explanation required by the GDPR is limited to being an ‘ex ante’, preceding a specific decision.”
From Automated decision-making in South Korea: a critical review of the revised Personal Information Protection Act (2024) · cites this paper as Wachter et al., 2017
In “A right to explanation derived from notification duties” (page unavailable), the paper says Articles 13–14 require an ex ante explanation of system functionality before a decision. But it also says the Article 15 right of access can be invoked after a decision, so the claim overstates the paper’s position by treating all GDPR-required explanations as limited to ex ante timing. (LLM, conf=0.84)
Experimental — accuracy not yet measuredOnly the right to provide information, instead of the right to explanation, can be recognised through the GDPR provisions such as notification duties and the right of access.
“However, as this argument does not align with the GDPR framework and the legislator’s intention, a compelling counterargument suggests that only the right to provide information, instead of the right to explanation, can be recognised through these provisions (Wachter et al., 2017).”
From Automated decision-making in South Korea: a critical review of the revised Personal Information Protection Act (2024) · cites this paper as Wachter et al., 2017
The Key Points section says the GDPR provides a limited ‘right to be informed’ about automated systems, not a right to an explanation of specific decisions. But the section on notification duties also calls the information required by Articles 13–15 an explanation of system functionality. The claim therefore overstates the paper’s position if ‘instead of the right to explanation’ excludes that limited form of explanation. (LLM, conf=0.85)
Experimental — accuracy not yet measured
The GDPR is subject to various and contradictory interpretations with regard to the explainability requirement.
“It is important to point out here that it is subject to various and contradictory interpretations with regard to the explainability requirement.”
From Fairness and explainability in automatic decision-making systems. A challenge for computer science and law (2023) · cites this paper as [74]
Scholars differ on whether a data subject has a right to an ex post explanation of automated decisions affecting them.
“Scholars differ on whether a data subject has a right to an ex post explanation of automated decisions affecting them (Edwards and Veale 2017; Edwards and Veale 2018; Kaminski 2019; Mendoza and Bygrave 2017; Selbst and Powles 2017; Wachter et al. 2017) and on the extent to which such a right is inherent, if not in Article 22, in the various other provisions of the GDPR (Maglieri 2019).”
From Simplification of Administrative Procedures through Fully Automated Decision-Making: The Case of Norway (2021) · cites this paper as Wachter et al. 2017
The argument that the right to explanation can be established at a local and ex post level does not align with the GDPR framework and the legislator's intention.
“However, as this argument does not align with the GDPR framework and the legislator’s intention, a compelling counterargument suggests that only the right to provide information, instead of the right to explanation, can be recognised through these provisions (Wachter et al., 2017).”
From Automated decision-making in South Korea: a critical review of the revised Personal Information Protection Act (2024) · cites this paper as Wachter et al., 2017
As the decision does not exist at the ex ante juncture, the explanation required by the GDPR must necessarily be a 'global' one, encompassing the functionality of the entire system rather than a specific decision.
“Furthermore, as the decision does not exist at this juncture, the explanation must necessarily be a ‘global’ one, encompassing the functionality of the entire system rather than a specific decision.”
From Automated decision-making in South Korea: a critical review of the revised Personal Information Protection Act (2024) · cites this paper as Wachter et al., 2017
GDPR protections on algorithmic decision-making are restricted to solely automated decisions.
“Yet these protections—and it is much debated whether these amount to a meaningful right of explanation (Edwards and Veale 2017; Wachter, Mittelstadt, and Floridi 2017)—are restricted to solely automated decisions.”
From Accountable Artificial Intelligence: Holding Algorithms to Account (2021) · cites this paper as Wachter, Mittelstadt, and Floridi 2017
If no legally binding right to explanation of specific automated decisions exists, GDPR Articles 13(2)(f), 14(2)(g), and 15(1)(h) at least entitle data subjects to meaningful information about the logic, significance, and envisaged consequences of automated decision-making systems.
“However, if a legally binding right to explanation of specific automated decisions does not exist, Articles 13(2)(f), 14(2)(g), and 15(1)(h) of the GDPR at least entitle data subjects to obtain “meaningful information about the logic involved, as well as the significance and the envisaged consequences” of automated decision-making systems [103].”
From Ethical and legal challenges of artificial intelligence-driven healthcare (2020) · cites this paper as [103]
It is highly controversial whether the GDPR grants a right to explanation and what such a right means.
“It is highly controversial, however, whether the GDPR actually grants a “right to explanation” and what such a right means [102], [103], [104], [105].”
From Ethical and legal challenges of artificial intelligence-driven healthcare (2020) · cites this paper as [103]
The GDPR offers a limited 'right to explanation' that will oblige companies to explain the purpose of an algorithm and the kind of data it uses when making automated decisions.
“It o ers a (limited)”
From A Layered Model for AI Governance (2017) · cites this paper as [21]
It is not impossible to close the gap between principles and practice if the right questions are asked and closer attention is paid to how the design process can influence whether an algorithm is more or less 'ethically-aligned.'
“Yet, it is not impossible if the right questions are asked (Green 2018; Wachter et al. 2017) and closer attention is payed to how the design process can influence (Kroll 2018) whether an algorithm is more or less ‘ethically-aligned.’”
From From What to How: An Initial Review of Publicly Available AI Ethics Tools, Methods and Research to Translate Principles into Practices (2020) · cites this paper as Wachter et al. 2017
The European Union's General Data Protection Regulation requires organisations deploying certain systems to provide affected individuals with 'meaningful information about the logic' behind their outputs.
“The European Union's General Data Protection Regulation (GDPR) (and similarly, the preceding 1995 Directive) requires organisations deploying certain systems to provide affected individuals with 'meaningful information about the logic' behind their outputs [81].”
From 'It's Reducing a Human Being to a Percentage': Perceptions of Justice in Algorithmic Decisions (2018) · cites this paper as [81]
Self-check
Percentages, sums and reported differences re-computed from the paper’s own numbers.
Each contradiction between two passages listed here was confirmed by an independent check.
Conflicting paragraph references for Article 14
MinorThe paper identifies the relevant Article 14 provision as paragraph (2)g in several places, but also calls it paragraph (2)h.
“Article 15(1)h is identical to Articles 13(2)f and 14(2)h”
“According to Articles 13(2)f and 14(2)g, this information includes:”
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- Authors
- Wachter, S., Mittelstadt, B., & Floridi, L.
- Affiliations
- British Library (GB)
- Venue
- International Data Privacy Law
- Publisher
- Oxford University Press (OUP)
- Published
- 2017-05
- Volume
- 7
- Issue
- 2
- Pages
- 76-99
- ISSN
- 2044-3994 (ISSN-L)
- 2044-4001
- OpenAlex
- W3124443940
- Cited by
- 1,308
- References
- 1
- Citations by year
- 2026: 266 · 2025: 218 · 2024: 104 · 2023: 159 · 2022: 122 · 2021: 132 · 2020: 123 · 2019: 102 · 2018: 56 · 2017: 26
- FWCI
- 860.31
- Type
- journal article
- Language
- en
- Open access
- closed
- Locations
- International Data Privacy Law (publishedVersion)
- Funders
- Alan Turing Institute
- Engineering and Physical Sciences Research Council (EP/N02334X/1, EP/N023013/1)
- Topics
- Social Sciences › Law › Digitalization, Law, and Regulation
- Social Sciences › Safety Research › Ethics and Social Impacts of AI
- Physical Sciences › Computer Science › Artificial Intelligence › Explainable Artificial Intelligence (XAI)
- Keywords
- right to explanation, automated decision-making, General Data Protection Regulation, algorithmic accountability, algorithmic transparency, artificial intelligence, data controllers, data subjects, algorithmic opacity, algorithmic fairness
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Registry, retraction, Cites and statistics results are computed, not judged, with one exception: a printed reference that no index lists is read once by a model before it counts as a citation error. Claims are extracted by a model and kept only when their quote appears verbatim in the text; each cited source is then checked, with a model’s help, for whether it says what the claim relies on. Those verdicts can be wrong — read the claim’s quote and the cited source before relying on one.
Claims read by deepseek-v4.1-flash under definition version 3 (extract-v3) on 2026-10-11.
Classified by jev-1.13-20260917 (gold-guideline-v0.2) on 2026-10-11.
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