Artificial Intelligence and the Right to Data Protection

Abstract

In this chapter, the law scholar Ralf Poscher sets out to show how AI challenges the traditional understanding of the right to data protection and presents an outline of an alternative conception that better deals with emerging AI technologies. Firstly, Poscher explains how the traditional conceptualisation of data protection as an independent fundamental right on its own collides with AI’s technological development, given that AI systems do not provide the kind of transparency required by the traditional approach. Secondly, the author proposes an alternative model, a no-right thesis, which shifts the focus from data protection as an independent right to other existing fundamental rights, such as liberty and equality. He argues that this allows us to step back from the idea that each and every instance of personal data processing concerns a fundamental right. Instead, it is important to assess how an AI system ‘behaves’, what type of risks it generates, and which substantive fundamental rights are being affected.