Explainability Due Process: Legal Guidelines for AI-Based Business Decisions

Big Data-powered Artificial Intelligence (AI) applications for decision-making purposes are rapidly seeping through every market of the so-called Industry 4.0. The objective of this chapter is to offer overarching legal guidelines on how to comply with the explainability duties set by the General Data Protection Regulation (GDPR). More specifically, from credit scoring to behavioural advertising, the analysis aims at highlighting how current European regulations are shaping controllers and online platform providers’ informative duties to enhance the transparency of their algorithmic decisions. To this end, following a brief empirical and terminological premise, the chapter will first trace the exact contours of the AI systems regulated by Article 22 GDPR. Then, building upon the interpretative insights provided by the New-Deal-for-Consumers regulatory package, the focus of the analysis will shift on a more detailed description of the information duties enshrined in the GDPR. Finally, the chapter concludes by providing the reader with an exemplified distinction between the pre-claim and post-claim meaningfulness thresholds controllers should meet in order to comply with their AI transparency obligations, as generically enshrined in Articles 12-15 and 22 GDPR and accordingly contextualized.