Your Right not not be subject to Automated Processing
As a data subject you have the right not to be subject to a decision made solely by automated means without human intervention, for example through the use of algorithms.
This right is set out in Article of 22 of the GDPR which is shown in full at the bottom of this page, along with Recital 71, which has a more comprehensive explanation of profiling and automated decision making.
This is sometimes also referred to as the ‘right to an explanation’, since Articles 13-15 of the GDPR which relate to your right to information and your right of access require that you are given an explanation of how any automated decision-making process operates.
In theory the law gives you a lot of control over automated decision making and profiling. You have a right to an explanation of the logic behind any such processing and the possible consequences for you.
Fully automated decision-making including profiling which has legal or similarly significant effects can only be carried out by a data controller if
- it is necessary for contractual purposes
- you have given your explicit consent
- it is authorised by a law which the controller is subject to
Enforcement in action: In April of 2019 the Finnish data protection ombudsman decided that a financial credit company which operated on online credit decision service was not providing users of the service with sufficient information about the logic being used to make decisions about their creditworthiness and ordered that additional information be provided.
Read more elsewhere
‘Can I be subject to automated individual decision-making, including profiling?’, European Commission
‘Your rights in relation to automated decision making, including profiling (Article 22 of the GDPR)’, Data Protection Commission of Ireland
1. The data subject shall have the right 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. 2. Paragraph 1 shall not apply if the decision: (a) is necessary for entering into, or performance of, a contract between the data subject and a data controller; (b) is authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests; or (c) is based on the data subject’s explicit consent. 3. In the cases referred to in points (a) and (c) of paragraph 2, the data controller shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision. 4. Decisions referred to in paragraph 2 shall not be based on special categories of personal data referred to in Article 9(1), unless point (a) or (g) of Article 9(2) applies and suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests are in place.
The data subject should have the right not to be subject to a decision, which may include a measure, evaluating personal aspects relating to him or her which is based solely on automated processing and which produces legal effects concerning him or her or similarly significantly affects him or her, such as automatic refusal of an online credit application or e-recruiting practices without any human intervention. Such processing includes ‘profiling’ that consists of any form of automated processing of personal data evaluating the personal aspects relating to a natural person, in particular to analyse or predict aspects concerning the data subject’s performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, where it produces legal effects concerning him or her or similarly significantly affects him or her. However, decision-making based on such processing, including profiling, should be allowed where expressly authorised by Union or Member State law to which the controller is subject, including for fraud and tax-evasion monitoring and prevention purposes conducted in accordance with the regulations, standards and recommendations of Union institutions or national oversight bodies and to ensure the security and reliability of a service provided by the controller, or necessary for the entering or performance of a contract between the data subject and a controller, or when the data subject has given his or her explicit consent. In any case, such processing should be subject to suitable safeguards, which should include specific information to the data subject and the right to obtain human intervention, to express his or her point of view, to obtain an explanation of the decision reached after such assessment and to challenge the decision. Such measure should not concern a child. In order to ensure fair and transparent processing in respect of the data subject, taking into account the specific circumstances and context in which the personal data are processed, the controller should use appropriate mathematical or statistical procedures for the profiling, implement technical and organisational measures appropriate to ensure, in particular, that factors which result in inaccuracies in personal data are corrected and the risk of errors is minimised, secure personal data in a manner that takes account of the potential risks involved for the interests and rights of the data subject, and prevent, inter alia, discriminatory effects on natural persons on the basis of racial or ethnic origin, political opinion, religion or beliefs, trade union membership, genetic or health status or sexual orientation, or processing that results in measures having such an effect. Automated decision-making and profiling based on special categories of personal data should be allowed only under specific conditions.
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