Today, algorithms are assuming a leading role in various areas of
decision-making. Prompted by a promise to provide increased economic
efficiency and fuel solutions for pressing societal challenges, algorithmic
decision-making (ADM) is often celebrated as an impartial and constructive
substitute for human adjudication. But in the face of this implied
objectivity and efficiency, the application of algorithms is also marred
with mounting concerns about embedded biases, discrimination, and exclusion.
Transparency as a figure of accountability and a measure of compliance needs
to be effective. As this contribution shows, however, uncertain contours of
IP and trade secret protection might frustrate this goal. Through examples
of several data subjects’ rights, it demonstrates that trade secrets in
particular pose a particular challenge to the proposed transparency. The ADM
context has drawn much attention owing to the great consequential impact it
has on our everyday lives. However, it seems to merely amplify the embedded
challenge of defining the scope of trade secrecy protection in principle.
Whereas the CJEU is expected to offer some guidance with regard to Article
22 and the extent of the information to be disclosed, it appears that a
thorny question of trade secrets and data access extends much beyond.
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