Why a Right to Explanation of Automated Decision-Making Does Not Exist in the General Data Protection Regulation

Since approval of the EU General Data Protection Regulation (GDPR) in 2016, it has beenwidely and repeatedly claimed that the GDPR will legally mandate a ‘right to explanation’ ofall decisions made by automated or artificially intelligent algorithmic systems. This right toexplanation is viewed as an ideal mechanism to enhance the accountability and transparencyof automated decision-making. However, there are several reasons to doubt both the legalexistence and the feasibility of such a right. In contrast to the right to explanation of specificautomated decisions claimed elsewhere, the GDPR only mandates that data subjects receivemeaningful, but properly limited, information (Articles 13-15) about the logic involved, as wellas the significance and the envisaged consequences of automated decision-making systems,what we term a ‘right to be informed’. Further, the ambiguity and limited scope of the ‘rightnot to be subject to automated decision-making’ contained in Article 22 (from which thealleged ‘right to explanation’ stems) raises questions over the protection actually afforded todata subjects. These problems show that the GDPR lacks precise language as well as explicitand well-defined rights and safeguards against automated decision-making, and therefore runsthe risk of being toothless. We propose a number of legislative and policy steps that, if taken,may improve the transparency and accountability of automated decision-making when theGDPR comes into force in 2018