This chapter provides an overview of the relationship between data and fundamental rights at the current point in time, and directions as to where and how this relationship might continue. At the basis of this relationship are the fundamental rights to privacy and free expression; however with the digital society becoming more pervasive, other fundamental rights, including freedom from discrimination and labour rights are now implicated by data. The role of private actors is prominent in discussions on data and fundamental rights given their key role in providing data infrastructure and services, in ways which may infringe users’ fundamental rights. In addition, fundamental rights organisations themselves are turning to the collection and use of data to assist with their functions. All of these topics will be explained and discussed before concluding with an outline of some possible future developments for data and fundamental rights, including the implementation of new technologies such as robotics and their impact on fundamental rights and the extent to which existing rights are still appropriate for the current and futures scenarios, or whether new kinds of fundamental rights or new kinds of implementations such as the digital constitutional project need to be recognised.
Christoph Busch and Alberto De Franceschi
Against the background of the emerging debate about personalized law, this chapter explores how Big Data and algorithm-based regulation could fundamentally change the design and structure of legal norms: impersonal law based on typifications could be replaced by a more personalized law, based on ‘granular legal norms’. We argue that the use of legal typifications which is a hallmark of impersonal law can be conceptualized as the answer to an information problem, a concession to the imperfections of a legal system administered by humans. The emergence of super-human capacities of information-processing through artificial intelligence could make it possible to personalize the law and achieve a level of ‘granularity’ that has hitherto been unachieved. The chapter analyses the benefits of ‘granular legal norms’ as well as possible limitations and objections, in particular privacy concerns and the principle of equality.
Bart Jan van Ettekoven and Corien Prins
This chapter discusses the challenges and transformation the judiciary faces with the advent of AI (artificial intelligence). Rather than focusing on the much debated ‘robot judge’, the authors discuss developments that are more realistic such as analytics to support judicial activities, including tools for understanding and modelling the judicial process, for promoting uniformity and efficiency in judicial practice as well as flexibility, efficiency and accuracy in judicial tasks. The authors also exemplify the specific risks for the judiciary that come with AI. Finally they develop a framework (compass) that aims to facilitate the discussion on whether AI should or should not be applied by the judiciary given core values such as independency, impartiality, integrity, transparency, the principles of due process, proper procedural law, as well as other professional standards.
Vanessa Mak, Eric Tjong Tjin Tai and Anna Berlee
At the outset of this book the question was put forth: do data-driven technologies require regulation, and vice versa, how does data science advance legal scholarship? While there is no resounding answer one way or the other to the first question, we can deduce from the analyses put forward by our authors that the rise of the so-called data economy does pose challenges to regulators. The challenges are diverse and the answers to the – many – questions put forward in the previous chapters will likely be manifold. We nevertheless perceive some common issues that regulators are likely to encounter in each of the areas of law that were examined. We summarize them in section 2 of this conclusion, and elaborate some thoughts on the direction in which future research on the regulatory aspects of data-driven technologies may be headed. The second part of the book considered the increasing use of data science in legal scholarship and legal practice. Here also, challenging questions for future research have been identified by our authors. While the replacement of lawyers and judges by robots may still be a science-fiction dream (or nightmare), the use of data analysis in law is changing the way in which we approach legal (research) questions. We summarize the tentative findings in this field in section 3 of this conclusion. We round off the book with a final question: with data science and law, are we witnessing the emergence of a new discipline?