Right to Explanation
| Autor | Nicolo Zingales |
| Páginas | 279-281 |
279
Right to Explanation
81 Right to Explanation
Nicolo Zingales
See also appeal.
The concept of ‘right to explanation’ refers to the informational
duties owed by a data controller to a data subject in relation to
automated decisions based on profiling. The basic provision for the
construct of the ‘right to explanation’ is Article 22 of the General
Data Protection Regulation (GDPR), which establishes a right for
any data subject not to be subject to a decision based solely on
automated processing, including profiling, which produces legal
effects concerning him or her or similarly significantly affects him
or her”. This provision is the evolution of article 15 of the Data
Protection Directive (DPD), in turn finding its historical root in
the French law of 1978 “on computing, files and freedoms” which
provided a broader right not to be subject to any decision involving
an appraisal of human behavior based solely on the automated
processing of data which describes the profile or personality of
the individual. The same law also granted the right to know and
challenge the information and reasoning used in such processing
in case the data subject opposed the results.
While the scope of this right is much narrower both in art 15 DPD and
art 22 GDPR, one can discern from the Directive’s Travaux Préparatoires
the same concern for human dignity-specifically that humans maintain
the primary role in ‘constituting’ themselves instead of relying entirely
on (possibly erroneous) mechanical determinations based on their
“data shadow”. Arguably, that concern underlies art. 22 GDPR despite
the more specific focus in its Travaux Préparatoires on the risks of
decisions based on profiling, which is defined in art. 4(4) as “any form
of automated processing of personal data consisting of using those
data to evaluate certain personal aspects relating to a natural person, in
particular to analyze or predict aspects concerning that natural person’s
performance at work, economic situation, health, personal preferences,
interests, reliability, behavior, location or movements”. Accordingly, the
explicit mention of profiling could be interpreted simply as illustrative
of one of the possible risks involved in automated processing.
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