On Perfecting China’s Algorithm Explanation Right System

The use of algorithmic decision-making is becoming increasingly common with the advancement of artificial intelligence technology.Although it provides convenience,its "black box" nature also results in potential harm such as algorithmic discrimination,dominance,and manipulation.Such harm infringes on the legitimate rights of individuals,including their privacy and freedom,and undermines social justice and fairness.To mitigate these risks and balance the interests of all parties involved,China’s "Personal Information Protection Law" has established the right to algorithmic explanation in Article24,Paragraph 3 and Article 48.This right is an emerging development in China,and further improvements to its provisions are still needed.Regarding the definition of the right to algorithmic explanation,this article takes a legislative purpose perspective and considers the technical characteristics of automated decision-making algorithms.It posits that the right to algorithmic explanation grants data subjects(individuals)the right to demand an explanation of the operation and decisionmaking of an algorithm from the user when it may or has had a significant legal or similar impact on their personal rights and interests.When determining the subjects and obligations related to the right to algorithmic explanation,this article considers both EU and Chinese legal provisions and potential implementation issues.The article specifies that the right’s subject is a natural person,excluding legal persons,and that the obligation subject includes legal persons,public institutions,and other organizations,but not natural persons.It’s important to note that the obligation subject is the user of the algorithmic decision-making process,not the algorithm designer.However,in practice,if the user experiences difficulties in explaining the algorithmic decision due to objective factors such as technology or knowledge,the algorithm designer should assist the user in providing an explanation.Regarding the rules for exercising the right to algorithmic explanation,this article draws on the legal provisions of the EU and the United States while taking into account the national conditions of China.It clarifies the scope of application,the objects of explanation,and the stages of exercise.The scope of application of the right to algorithmic explanation should meet two conditions: first,the type of decision-making cannot be limited to decisions based solely on automated processing but should also include hybrid decision-making with "human participation" factors.This is because in practical applications,individuals may rely entirely on the algorithm’s suggestions to make decisions,making algorithmic decision-making the substantive basis for the decision.Second,the decision-making should have a "significant impact" on personal rights and interests,which can be understood as "legal or similarly significant impact".Regarding the objects of explanation,individuals can assert the right to explain the algorithmic system or specific decisions.Regarding the stages of exercising the right,it should cover the predecision,during decision,and post-decision stages,so as to achieve an organic combination of the object and stage of explanation and provide more comprehensive protection for personal rights and interests.Regarding the issue of setting the explanation standard for the obligation subject,this article draws on the legal provisions of the EU and proposes special circumstances for exemption from the obligation to explain,which is when the legitimate rights and interests of the user of the algorithmic decision outweigh the rights and freedoms of the data subject,the exercise of the right to algorithmic explanation can be blocked.However,in general,given the diversity and complexity of the application scenarios of algorithmic decisionmaking in China,and after analyzing various proposals put forward by the academic community,considering the value orientation of the right to algorithmic explanation,this article agrees with the adoption of a scenario-based explanation standard,which sets the explanation standard based on different application scenarios of algorithmic decisionmaking and the substantive impact of algorithmic decisions on the decisions mad.