Put Dialectics into the Machine: Protection against Automatic-decision-making through a Deeper Understanding of Contestability by Design
Open accessAbstract
This paper endorses the idea that the right to contest provided for by art. 22, § 3 GDPR, actually is the apex of a progressive set of tools the data subject has at his disposal to cope with automatic decisions and it should work as an architectural principle to create contestable systems. But in order to achieve that important role, it cannot be reduce to the right of human intervention, also provided for by art.22, § 3, nor to a generic opposition to the outcome of the automatic processing. Thus, drawing from a thorough analysis of the relationships among the rights included in art. 22, § 3 GDPR as well as from the juridical proper meaning of “ contestatio ”, it is concluded that the right to contest has its own proper nature as a hybrid substantial-processual right that is able to give concrete shape to all the other rights indicated in art. 22, § 3, included the much discussed right to explanation.
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Contestability includes, but also exceeds, mere human intervention.
“Finally, for Sarra (2020) contestability includes, but also exceeds, mere human intervention.”
From Contestable AI by Design: Towards a Framework (2022) · cites this paper as Sarra (2020)
Contestability demands explainability, and insofar as such explanations must include a justification specific to the case at hand, contestability also increases accountability.
“Therefore, contestability demands explainability, and insofar as such explanations must include a justification specific to the case at hand, contestability also increases accountability.”
From Contestable AI by Design: Towards a Framework (2022) · cites this paper as Sarra (2020)
Without a dialectical exchange between decision subject and human controller, there can be no exchange of arguments specific to the case at hand.
“Without such dialogue, there can be no exchange of arguments specific to the case at hand.”
From Contestable AI by Design: Towards a Framework (2022) · cites this paper as Sarra (2020)
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References 73 · Cited by 24
Research works printed but not linked: 7
- Crafa, S. 2019. "Artificial Intelligence and Human Dialogue." Journal of Ethics and Legal Technologies 1 (1): 44-56.
- Crawford, K., and J. Schultz. 2014. "Big Data and Due Process: Towards a Framework to Redress Predictive Privacy Harms." Boston College Law Review 55 (1): 93-125.
- Hildebrandt, M. 2016. "The New Imbroglio. Living with Machine Algorithm." In The Art of Ethics in the Information Society, edited by L. Janssens, 55-60. Amsterdam: Amsterdam University Press.
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- Petkova, B., and F. Bohem. 2018. "Profiling and the Essence of Data Protection." In Cambridge Handbook of Consumer Privacy, edited by J. Polonetsky, O. Tene, and E. Selinger, 285-300. Cambridge: Cambridge University Press.
- Wachter, S., B. Mittelstadt, and C. Russell. 2018. "Counterfactual Explanations without Opening the Black Box: Automated Decisions and the GDPR." Harvard Journal of ALw and Technology 31 (2): 841-87.
- Zarsky, T. 2016/2017. "Incompatible: the GDPR in the Age of Big Data." Seton Hall Law Review 47: 995-1020.
- Authors
- Sarra, C.
- Affiliations
- University of Padua (IT)
- Corresponding author
- Sarra, Claudio
- ORCID
- Sarra, Claudio
- Venue
- Global Jurist
- Publisher
- Walter de Gruyter GmbH
- Published
- 2020-03-20
- Volume
- 20
- Issue
- 3
- ISSN
- 1934-2640 (ISSN-L)
- OpenAlex
- W3011492294
- Cited by
- 24
- References
- 73
- Citations by year
- 2026: 1 · 2025: 10 · 2024: 5 · 2023: 2 · 2022: 5 · 2021: 1
- FWCI
- 13.10
- Type
- journal article
- Language
- en
- Open access
- hybrid
- doi.org
- Locations
- Global Jurist (publishedVersion, cc-by)
- Padua Research Archive (University of Padova) (submittedVersion, cc-by)
- Topics
- Social Sciences › Law › Digitalization, Law, and Regulation
- Social Sciences › Safety Research › Ethics and Social Impacts of AI
- Social Sciences › Business, Management and Accounting › Industrial relations › Legal and Labor Studies
- Keywords
- GDPR Article 22, automated decision-making, right to explanation, data subject rights, algorithmic transparency, EU data protection law
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