Research On The "Right To Explanation"

Article 22 of the General Data Protection Regulations adopted by the European Union in 2016 and the rule of explanation for automated decision-making established in paragraph 71 of the Preface are summarized by the academic community as the right to explanation.According to domestic and foreign relevant legislation,we can know that the right to explanation can be defined as a person can obtain the explanation about some automated decision-making to avoid the possible discrimination and risk of infringement in the decision-making,while the decision-making Based solely on automated processing,and it will result in some Legal or similarly significant effect.The earliest rule in Europe was the French Freedom of Information Act(1978),and then Article 15 of the EU Data Protection Directive(1995)established more specific rules for automated individual decisions.Finally,the EU General Data Protection Regulations(2016)clarified the data controller's obligations of explanation,and the setting of this obligation has had a profound impact on the legislation of other countries.In the era of big data,the automated decision-making is becoming more and more common,the risks and crises hidden under the algorithmic dividend are gradually escalated.,It is difficult to get relief from the algorithmic infringement under the existing institutional system,the construction of the right of the to explanation is just in time.Although it has been questioned,with the continuous development of the technology industry and the space reservation in the legislation.the right to explanation has a certain feasibility basis.The analysis of the legal relation of the right to explanation is a necessary factor for the comprehensive cognition of the right.The subject of the right of explanation is mainly natural person but not legal person.On the contrary,the subject of obligation is usually enterprise,institution and so on,but not natural person.the object of the right is the behavior of the users of the algorithm decision-making,including actions and omissions.The content of the right to explanation can be specifically divided into the stage and the standard of explanation.Specifically,according to whether the automated decision-making finished,the explanation can be divided into ex ante explanation and ex post explanation.The explanation criterion should combine rational human thinking to interpret the sentence of "meaningful information",In the pre-explanation stage,this hypothesis and the relevant logical and meaningful information should be systematic and general.Ex post explanation should be based on specific decisions.Whether "solely based on automated processing" and whether “there is a legal impact or similar significant impact" is the key to the application of the right.Whether there is manual interference or not,as long as there is no substantial impact,it should be considered to be only based on automated processing.The judgment of significant impact should also be combined with the scenario applied in automated decision-making to analyze whether the decision has the potential to have a significant impact on the individual's situation,behavior or choice.Public interests,as well as legitimate rights and interests such as trade secrets and intellectual property rights,are the main factors restricting the full exercise of the right to explanation.The existing legal norms in China are almost blank in the right to explanation,and the regulation of algorithm tends to decentralize legislation and result supervision.We can establish the legal status of the right to explanation in the forthcoming data security law or personal information protection law.Further improve the rights content with reference to relevant legislation to promote further regulation of China's algorithms.