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Debating the Right to Explanation: An Autonomy-based Analytical Framework

Michelle Miao

(2022) 34 SAcLJ 864

A most controversial legal tool featured in Europe’s General Data Protection Regulation (“GDPR”), the right to explanation (“RTE”), has sparked broad public attention and heated academic debate. Despite controversies and scepticism about its conceptual clarity and practical enforceability, however, the RTE is widely recognised as a promising regulatory instrument that could be utilised to redistribute resources and responsibilities among the main stakeholders of the automated decision making process. Moreover, it holds great promise for empowering data subjects who suffer from information asymmetry and opacity and provides a powerful counterweight to the increasing prevalence of automated decision making in our digitalised everyday life. This article explores the controversies in RTE-related GDPR texts and other related legal instruments. It explores and analyses five aspects of complex issues that shape the RTE’s scope, degree, quality, validity and nature. In the second part of this article, the author advances an autonomy-based theory to conceptualise the RTE to reconcile the issues above relating to the legislative texts of the European data protection law, and to clarify three pairs of tensions at the heart of the debate concerning the existence and shape of the RTE: (a) negative versus positive autonomy; (b) the instrumental versus the intrinsic value of the RTE; and (c) the holistic versus segregated approach of interpretation.