Is the EU human rights legal framework able to cope with discriminatory AI?

The challenges introduced by AI for the EU anti-discrimination legal framework have been a widely discussed topic among the doctrine. In the light of the 20th anniversary of the EU Charter of Fundamental Rights, the Commission released a regulatory proposal to tackle AI. This paper seeks to determine whether the proposal successfully addresses the existent pitfalls of the EU framework. First, this paper explores the functioning of AI systems that employ machine learning techniques and determines how discrimination takes place. Second, the article examines intellectual property rights as one of the main barriers for accountability and redressal of violations committed by an AI system. Third, the state of the discussion concerning the pitfalls of the existent EU approach towards non-discrimination is addressed. The available academic literature suggests that discriminatory outputs produced by an AI will amount to indirect discrimination in most scenarios. In this sense, cases of indirect proxy discrimination will likely pass the proportionality test, therefore justifying the discriminatory output. The last section of this article studies the Commission’s regulatory proposal. Although the document seems to effectively tackle discrimination caused by biased training data sets, this paper concludes that intellectual property rights and proxy discrimination still constitute significant barriers for the enforcement of anti-discrimination law.

Implementation of the proportionality test during the search process and the collection of evidence

As a means of collecting materials, the search and seizure of objects and documents is of undeniable importance in criminal evidence, providing valuable data that serve to establish the existence or non-existence of the crime, to identify the perpetrator, to establish guilt and other circumstances essential to the just settlement of the case. The present study, in the light of the proportionality test, reflects on the application of several evidentiary procedures, based on multiple criteria, in particular, the assessment of the reasonable doubt, the proportionality between the evidentiary procedure used and the degree of the incriminated deed; the relevance of the materials collected as a result of the evidentiary procedure and the excessive use of force, in carrying out the search.

Fundamental Rights and the Legal Obligations of Business

Corporations can significantly affect the fundamental rights of individuals. This book investigates what legal obligations they have to respect, protect and realise these rights. In doing so, it addresses important conceptual issues surrounding fundamental rights. From an investigation of existing legal models, a clear structural similarity surfaces in how courts make decisions about corporate obligations. The book seeks to systematise, justify and develop this emergent 'multi-factoral approach' through examining key factors for determining the substantive content of corporate obligations. The book defends the use of the proportionality test for ascertaining corporations' negative obligations and outlines a novel seven-step test for determining their positive obligations. The book finally proposes legal and institutional reforms - on both the national and international levels - designed to enhance the quality of decision-making surrounding corporate obligations, and embed fundamental rights within the corporate structure and the minds of key decision-makers.

17. Irrationality and Proportionality

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter, which discusses the circumstances for judicial review of a public authority’s decision on the grounds that it is irrational, first explains the history of irrationality and ‘Wednesbury unreasonableness’, to provide some background to the topic and to chart its development. It then considers cases in which the courts have discussed different versions of the irrationality test, discusses the difference between irrationality and proportionality, and examines the development of proportionality and its use in judicial review cases. The chapter distinguishes between proportionality and merits review and discusses the use of judicial deference by the courts. Proportionality, and not irrationality, is the test used to determine whether a public authority has acted unlawfully when its decision is challenged by judicial review under section 6 of the Human Rights Act 1998. The irrationality test is used in non-Human Rights Act judicial review cases, but the courts have also used the proportionality test in cases involving common law rights. The chapter concludes by considering the discussion in the case law and the scholarship as to whether the irrationality test should be replaced by the test of proportionality across both types of case: traditional judicial review cases and those involving a human rights issue.

The Construction of Constitutional Rights

This chapter calls for the construction of constitutional rights as principles rather than as rules. The rule construction conceives subsumption or classification as the appropriate form for the application of constitutional rights. In this way, it attempts to avoid the problems associated with balancing. By contrast, the principles construction argues that balancing is inevitable and unavoidable. Balancing is at the very core of the proportionality test. The debate over the construction of constitutional rights is, therefore, first and foremost a debate over proportionality analysis. The central objection to the principles construction is that balancing, and by the same token, the proportionality test, is irrational. This irrationality objection is countered by analysis of the formal structure of balancing; the analysis shows that balancing is a case of rational legal argument that is explicated by means of an arithmetic formula: the Weight Formula. The Weight Formula provides a demonstration of how and why balancing is possible as a form of rational legal argument. It also makes it possible to show that proportionality analysis does not endanger the power of constitutional rights.

Applying the Proportionality Principle to COVID-19 Certificates

With the SARS-CoV-2 pandemic entering its second year, public and private actors alike grow eager to achieve some semblance of normality. In this context, the idea of “vaccination passports” or “immunity certificates” as a means of resuming social and economic activity has been gaining momentum all around the world. This article aims to provide a legal analysis of this initiative through the lens of the proportionality principle. A proportionality test is conducted in order to determine whether the degree of infringement of the human rights implicated is balanced by the potential of a certification system to mitigate the risks of the virus. The results from this analysis show that the targeted aims can be achieved through already existing measures with a lesser impact on civil and fundamental human rights. Moreover, in a context of uncertainty around the immunopathology of COVID-19, the introduction of these certificates presents ethical and scientific challenges, which lead us to believe that this measure is unlikely to play a central role in stopping the spread of the disease, and it could set the pace for a dangerous precedent, allowing for extensive discrimination and exacerbating already existing inequalities and disparities.

Health Crisis Measures and Standards for Fair Decision-Making: A Normative and Empirical-Based Account of the Interplay Between Science, Politics and Courts

This paper examines, in the light of the COVID-19 crisis, the room for judicial oversight of health crisis measures based on the public’s expectations of how governments should act in the interplay with experts. The paper explains how trust theory and procedural rationality review help to address concerns related to legitimacy and expertise. The paper argues that courts should distinguish between two stages. In the initial stage, fear as a driver for government support based on expertise justifies that the proportionality test is limited to the question of whether measures were based on virologist expert advice. In the next stage, people expect the government to take expert-informed decisions, but also require that the government takes into account societal needs. Procedural rationality review in this stage demands that courts examine whether the decision was based on an informed balance of rights and interests.

Ethics of selective restriction of liberty in a pandemic

Liberty-restricting measures have been implemented for centuries to limit the spread of infectious diseases. This article considers if and when it may be ethically acceptable to impose selective liberty-restricting measures in order to reduce the negative impacts of a pandemic by preventing particularly vulnerable groups of the community from contracting the disease. We argue that the commonly accepted explanation—that liberty restrictions may be justified to prevent harm to others when this is the least restrictive option—fails to adequately accommodate the complexity of the issue or the difficult choices that must be made, as illustrated by the COVID-19 pandemic. We introduce a dualist consequentialist approach, weighing utility at both a population and individual level, which may provide a better framework for considering the justification for liberty restrictions. While liberty-restricting measures may be justified on the basis of significant benefits to the population and small costs for overall utility to individuals, the question of whether it is acceptable to discriminate should be considered separately. This is because the consequentialist approach does not adequately account for the value of equality. This value may be protected through the application of an additional proportionality test. An algorithm for making decisions is proposed. Ultimately whether selective liberty-restricting measures are imposed will depend on a range of factors, including how widespread infection is in the community, the level of risk and harm a society is willing to accept, and the efficacy and cost of other mitigation options.