From the magazine SZW-RSDA 1/2020 | S. 3-17 The following page is 3

Automatisierte Entscheidungen: Grundfragen aus der Perspektive des Privatrechts

Data protection law addresses the issue that more and more (complex) decisions are taken automatically. A closer look at the regulatory approaches of the General Data Protection Regulation (GDPR), the Council of Europe’s Convention 108 and the draft Swiss Federal Act on Data Protection (draft FADP) leads to two conclusions.

On the one hand, the scope of application of these provisions is too narrow: Regulating automated decision-making in data protection law leads to excluding relevant phenomena from regulation because the respective decisions are not based on the processing of personal data. Moreover, even minimal human involvement leads to inapplicability of the provisions, thereby excluding cases in which the human involvement had no (or no relevant) impact on the decision. This calls for convincing alternative criteria in order to re-define the scope of application. While the search for such criteria has only just begun, we suggest to examine more closely whether the scope of…