The Juridical Logic of the Right not to be Subject to Automated Processing and Its Applications in China

Abstract

In order to cope with the digital dilemma associated with algorithmic society, the Right not to be Subject to Automated Processing came into being. Originated from the GDPR Article 22, then mirrored by most of the personal information protection laws world-wide. The very nature of GDPR Article 22 is a right, not a prohibition; yet the right not to be subject to a decision based solely on automated processing conveniently confuses with the right to erase, the right to be provided with an explanation and the right to be forgotten. There are two critical paths to understand this right: (1) Recital 71 of GDPR has stipulated three fundamental rights for the data subject to protect their legitimate interests; in between these three rights there are no reciprocal causation but degree ascension. (2) The right itself varies in different scenes, it may mean not to be subject to data collection, not to be subject to profiling or not to be subject to platform interaction according to different technological contexts. In order to break the illusory promise of the right not to be subject to automated processing, the Assumption of Risks alike exemption conditions should give way to statutory permit aiming to increase public well-being. To think outside the GDPR’s box, the right to be heard and the right to attention both revealed practical path for the application of the right, so far as the social cost could be maintained in a proper manner. To apply such rights in the Chinese context, law-makers shall balance its efficacy and cost, so as to construct a full-cycle protective mechanism.