Privacy, Non-Discrimination and Equal Treatment: Developing a Fundamental Rights Response to Behavioural Profiling

Abstract

In the diverse attempts to identify fundamental rights implications of behavioural profiling, the lines between the right to privacy, non-discrimination and equal treatment have been blurred. Scholars have struggled to develop coherent approaches to the widespread practice of evaluating and differentiating between individuals on the basis of correlative relations between random, causally unrelated categories in large data sets. This chapter suggests a response to these practices and establishes clear boundaries between the rights. It is argued that the right to non-discrimination should be interpreted narrowly, thus not applying to large parts of behavioural profiling. Extending its scope to random categories would jeopardise the distinguished quality of the right to effectively prohibit the most appalling and morally reprehensible differentiations. The scope of the right to privacy, conversely, has an open-ended structure and can be further evolved in order to respond to novel threats. However, it is first and foremost the right to equal treatment, which carries great, even though little acknowledged potential to provide a normative framework for behavioural profiling. The engagement with it can encourage, frame and respond to a much needed societal debate on machine learning based data analysis. Difficulties which occur in the application of the right to equal treatment are manifestations of a larger societal challenge. The shared question, which both, fundamental rights lawyers and society at large have to answer is how to accommodate the new way of generating knowledge and differentiating between individuals within our conventional way to understand the world, to reason and to differentiate.