Artificial intelligence and the fundamental right to data protection: Opening the door for technological innovation and innovative protection

Abstract

The use of AI-insofar as personal data are processed-poses a challenge to the current data protection law as the underlying concept of data protection law conflicts with AI in many ways. It is debateable whether this has to be the case from the perspective of fundamental rights. If the fundamental data protection right in Article 8 of the EU Charter of Fundamental Rights (CFR) recognised a right to informational self-determination, to make a personal decision on the use of one’s personal data, then the limitations of the legislator, at least with regard to the use of AI by public bodies would be strict-i.e. the use of AI would thus be largely prohibited in this regard. However, it seems to be more convincing to interpret Article 8 CFR as a duty of the legislator to regulate the handling of data by the state-and thus also the use of AI-in such a way that fundamental rights are protected as far as possible. A fundamental right to data protection interpreted in this way would be open to technical innovations, because it would enable the legislature to deviate in parts from the traditional basic concept of data protection law and instead to test innovative protective instruments that could even prove to be more effective. At the same time, it does not leave the individual unprotected, since it obliges the legislator, among other things, to base its regulations on a comprehensive concept for the protection of fundamental rights, which must also take account of data processing by private individuals.