Procedural safeguards in decision
making processes with respect to
IoT and Big Data
Bart van der Sloot
Senior researcher
Tilburg Institute for Law, Technology
and Society (TILT)
Overview
• (1) Acces – Use
• (2) Decision making in the GDPR
• (3) Decision making in the ECHR
• (4) Conclusion
(1) Acces – Use
• Current paradigm focusses primarily on the
gathering of personal data
• Proposals from the industry + American
scholars to focus more/only on the use of
personal data
• Recent proposal ‘Homo Digitalis’ by Lokke
Moerel en Corien Prins
(1) Acces – Use
• WRR: Big Data in een vrije en veilige
samenleving
• Keep rules on gathering data and strengthen
them
• Develop additional rules for using the data
• But most importantly: develop rules for the
phase in between the gathering and the use of
data
(1) Acces – Use
(1) Acces – Use
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Data should be correct
Methodology for gathering data
Methodology for combining datasets
Which algortihms are used
Meta data on the gathering, combining and
anlyses of the data
• Transparancy in the black box
• Assessement of the profiles produced
• Assessement of the goals that are achieved
(2) Decision making in the GDPR
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Article 22 Automated individual decision-making, including profiling
1. The data subject shall have the right not to be subject to a decision based solely
on automated processing, including profiling, which produces legal effects
concerning him or her or similarly significantly affects him or her.
2. Paragraph 1 shall not apply if the decision:
(a) is necessary for entering into, or performance of, a contract between the data
subject and a data controller;
(b) is authorised by Union or Member State law to which the controller is subject
and which also lays down suitable measures to safeguard the data subject's rights
and freedoms and legitimate interests; or
(c) is based on the data subject's explicit consent.
3. In the cases referred to in points (a) and (c) of paragraph 2, the data controller
shall implement suitable measures to safeguard the data subject's rights and
freedoms and legitimate interests, at least the right to obtain human intervention
on the part of the controller, to express his or her point of view and to contest the
decision.
4. Decisions referred to in paragraph 2 shall not be based on special categories of
personal data referred to in Article 9(1), unless point (a) or (g) of Article 9(2)
applies and suitable measures to safeguard the data subject's rights and freedoms
and legitimate interests are in place.
(2) Decision making in the GDPR
• Article 13 Information to be provided where personal data
are collected from the data subject
• 2.In addition to the information referred to in paragraph 1,
the controller shall, at the time when personal data are
obtained, provide the data subject with the following
further information necessary to ensure fair and
transparent processing:
• (f) the existence of automated decision-making, including
profiling, referred to in Article 22(1) and (4) and, at least in
those cases, meaningful information about the logic
involved, as well as the significance and the envisaged
consequences of such processing for the data subject.
(2) Decision making in the GDPR
• Article 14 Information to be provided where personal data
have not been obtained from the data subject
• 2.In addition to the information referred to in paragraph 1,
the controller shall provide the data subject with the
following information necessary to ensure fair and
transparent processing in respect of the data subject:
• (g) the existence of automated decision-making, including
profiling, referred to in Article 22(1) and (4) and, at least in
those cases, meaningful information about the logic
involved, as well as the significance and the envisaged
consequences of such processing for the data subject.
(2) Decision making in the GDPR
• Article 15 Right of access by the data subject
• 1.The data subject shall have the right to obtain from
the controller confirmation as to whether or not
personal data concerning him or her are being
processed, and, where that is the case, access to the
personal data and the following information:
• (h) the existence of automated decision-making,
including profiling, referred to in Article 22(1) and (4)
and, at least in those cases, meaningful information
about the logic involved, as well as the significance and
the envisaged consequences of such processing for the
data subject.
(2) Decision making in the GDPR
• Article 47 Binding corporate rules
• 2.The binding corporate rules referred to in paragraph 1
shall specify at least:
• (e) the rights of data subjects in regard to processing and
the means to exercise those rights, including the right not
to be subject to decisions based solely on automated
processing, including profiling in accordance with Article
22, the right to lodge a complaint with the competent
supervisory authority and before the competent courts of
the Member States in accordance with Article 79, and to
obtain redress and, where appropriate, compensation for a
breach of the binding corporate rules;
(2) Decision making in the GDPR
• Article 70 Tasks of the Board
• 1.The Board shall ensure the consistent
application of this Regulation. To that end, the
Board shall, on its own initiative or, where
relevant, at the request of the Commission, in
particular:
• (f) issue guidelines, recommendations and best
practices in accordance with point (e) of this
paragraph for further specifying the criteria and
conditions for decisions based on profiling
pursuant to Article 22(2);
(3) Decision making in the ECHR
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ARTICLE 6
Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court
in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to
pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in cour
(3) Decision making in the ECHR
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ARTICLE 5
Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation
prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion
of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before
the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts
or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against
him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or
other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall
be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to
compensation.
(3) Decision making in the ECHR
• ARTICLE 7
• No punishment without law
• 1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed.
• 2. This Article shall not prejudice the trial and punishment
of any person for any act or omission which, at the time
when it was committed, was criminal according to the
general principles of law recognised by civilised nations.
(3) Decision making in the ECHR
• ARTICLE 13
• Right to an effective remedy
• Everyone whose rights and freedoms as set
forth in this Convention are violated shall have
an effective remedy before a national
authority notwithstanding that the violation
has been committed by persons acting in an
official capacity.
(3) Decision making in the ECHR
• ARTICLE 14
• Prohibition of discrimination
• The enjoyment of the rights and freedoms set
forth in this Convention shall be secured
without discrimination on any ground such as
sex, race, colour, language, religion, political or
other opinion, national or social origin,
association with a national minority, property,
birth or other status.
(3) Decision making in the ECHR
• ARTICLE 34
• Individual applications
• The Court may receive applications from any
person, nongovernmental organisation or group
of individuals claiming to be the victim of a
violation by one of the High Contracting Parties of
the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective
exercise of this right.
(3) Decision making in the ECHR
• ECtHR, R. v. The United Kingdom, appl.no. 10496/83, 8 July 1987. ECtHR,
W. v. The United Kingdom, appl.no. 9749/82, 8 July 1987. ECtHR, B. v. the
United Kingdom, appl.no. 9840/82, 08 July 1987, § 58.
• Even before assessing those cases in substance, the Court remarked
regarding the scope of the issues before it that the ‘background to the
instant case is constituted by certain judicial or local authority decisions
regarding the applicant’s child S. The Court finds it important to
emphasise at the outset that the present judgment is not concerned with
the merits of those decisions; this issue was not raised by the applicant
before the Commission and did not form part of the application which it
declared admissible. Since the Commission’s admissibility decision
delimits the compass of the case brought before the Court, the latter is
not in the circumstances competent to examine or comment on the
justification for such matters as the taking into public care or the adoption
of the child or the restriction or termination of the applicant’s access to
him.’
(3) Decision making in the ECHR
• In its general principles, the Court referred to the fact that although
the essential object of Article 8 is to protect the individual against
arbitrary interference by the public authorities, there may in
addition be positive obligations inherent in an effective respect for
family life. The Court recognized that local authorities are faced
with a task that is extremely difficult and it would only add to their
problems to require them to follow on each occasion an inflexible
procedure. Still, it emphasized that the decision in the type of cases
before it may well prove to be irreversible as where a child has been
taken away from his parents and placed with alternative caretakers,
he may in the course of time establish with them new bonds which
it might not be in his interests to break by reversing a previous
decision to restrict or terminate parental access to him.
(3) Decision making in the ECHR
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The Court then turned to hold its principle consideration: ‘It is true that Article 8
contains no explicit procedural requirements, but this is not conclusive of the
matter. The local authority’s decision-making process clearly cannot be devoid of
influence on the substance of the decision, notably by ensuring that it is based on
the relevant considerations and is not one-sided and, hence, neither is nor appears
to be arbitrary. Accordingly, the Court is entitled to have regard to that process to
determine whether it has been conducted in a manner that, in all the
circumstances, is fair and affords due respect to the interests protected by Article
8. Moreover, the Court observes that the English courts can examine, on an
application for judicial review of a decision of a local authority, the question
whether it has acted fairly in the exercise of a legal power. The relevant
considerations to be weighed by a local authority in reaching decisions on children
in its care must perforce include the views and interests of the natural parents.
The decision-making process must therefore, in the Court’s view, be such as to
secure that their views and interests are made known to and duly taken into
account by the local authority and that they are able to exercise in due time any
remedies available to them.’ ECtHR, B. v. The United Kingdom, application no.
9840/82, 8 July 1987, § 63-64.
(3) Decision making in the ECHR
• This approach has grown since then:
• ‘It finds that the absence of such a forum or
mechanism in the present case discloses a
fundamental shortcoming since the applicant as a
result was not involved in the decision-making
procedure to the degree sufficient to provide him with
the requisite protection of his interest. Consequently,
the interference complained of cannot be regarded as
"necessary" within the meaning of Article 8 para. 2 of
the Convention.’ ECmHR, Boyle v. the United Kingdom,
appl.no. 16580/90, 09 June 1993.
(3) Decision making in the ECHR
• In McMichael v. the United Kingdom (1993), the Commission also found a
violation of Article 8 ECHR as the applicants had no sight of reports and
documents which were relevant to the proceedings regarding the taking
into care of their child and which contained matters at least indirectly
relating to the welfare of their child and their own capacities in that
respect. Thus the Commission found that ‘the procedure whereby the
confidential reports and other documents, which were before the
Children' Hearings when they took decisions relating to A. [the child] and
the applicants' relationship with him, were not disclosed to the applicants,
failed to afford them the requisite protection of their interests.
Consequently, there has in that regard been a failure to respect the
applicants' family life. Even having regard to the State's margin of
appreciation, the fair balance which has to be struck between the
interests of the applicants and other legitimate interests has not been
attained.’ ECmHR, McMichael v. the United Kingdom, appl.no. 16424/90,
31 August 1993.
(3) Decision making in the ECHR
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The Court (1995) confirmed this view and also responded to the Government’s
suggestion that in so far as the nondisclosure to the second applicant of
documents before the children’s hearing was held to have rendered the procedure
unfair and infringed her rights under Article 6 para. 1, it was unnecessary to
examine the same complaint under Article 8 as no separate issue arose. The Court
however pointed ‘to the difference in the nature of the interests protected by
Articles 6 para. 1 and 8. Thus, Article 6 para. 1 affords a procedural safeguard,
namely the "right to a court" in the determination of one’s "civil rights and
obligations"; whereas not only does the procedural requirement inherent in Article
8 cover administrative procedures as well as judicial proceedings, but it is ancillary
to the wider purpose of ensuring proper respect for, inter alia, family life. The
difference between the purpose pursued by the respective safeguards afforded by
Articles 6 para. 1 and 8 may, in the light of the particular circumstances, justify the
examination of the same set of facts under both Articles.’
ECtHR, McMichael v. the United Kingdom, appl.no. 16424/90, 24 June 1995, § 91.
See further: K. Reid, ‘Child care cases and the European Convention on Human
Rights’, Child and Family Law Quartely, Vol 5, No 2, 1993.
(3) Decision making in the ECHR
• In TP and KM v. the United Kingdom (1998), the Commission continued to
build on this practice with regard to parents faced with serious allegations
relating to abuse or other ill-treatment of the children. It emphasized the
importance of full information as to the factual basis of these allegations
and it focussed again on the essential element of time in these cases. The
Commission stressed that it is not the parents’ responsibility to investigate
the reliability of purported evidence relied on by local authorities or
litigate to obtain such information but considered that the authorities
should, from an early stage and as soon as practically possible, provide for
the material to be viewed and it emphasized that in particular, where the
material concerned is used to justify an emergency measure of removal, a
delay of more than a year in such material being made available is
unjustifiable. ECmHR, T.P. and K.M. v. the United Kingdom, appl.no.
28945/95, 26 May 1998. See further: ECtHR, T.P. and K.M. v. the United
Kingdom, appl.no. 28945/95, 10 May 2001.
(3) Decision making in the ECHR
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It goes too far to discuss every case in which the procedural requirements were invoked, but
especially after 2000 the Court has increasingly relied on these principles. In the following cases
which will be discussed below, the Court found a violation of Article 8 ECHR in relation to, among
others, disrespect for the procedural requirements implicit in Article 8 ECHR. In Elsholz v. Germany
(2000), the Court referred to the combination of the refusal to order an independent psychological
report and the absence of a hearing before the regional court. In Buchberger v. Austria (2001), the
Court found a failure of the regional court to inform the applicant of the additional evidence
obtained during the appeal proceedings which deprived her of the possibility to react thereto. In P.,
C. and S. v. the United Kingdom (2002), the Court referred to the lack of legal representation of the
applicants during the care proceedings and during the freeing for adoption proceedings, together
with the lack of any real lapse of time between the two procedures. In Venema v. the Netherlands
(2002), the Court found an unjustified failure to allow the applicants to participate in the decisionmaking process leading to the making of the provisional order to separate the child from her
parents. In Kosmopoulu v. Greece (2004), the Court noted that a psychological report was released
only after four years to the applicant and also found that none of the three psychologists who
drafted a medical report examined the applicant in order to reach their conclusions. In Haase v.
Germany (2004), the national court had failed to allow the applicants to participate in the decisionmaking process. In C. v. Finland (2006), a national court had awarded custody without holding an
oral hearing in which the parties were invited to address the matter. In Moser v. Austria (2006), the
Court also established a violation of Article 8 because there was insufficient involvement in the
decision making process. ECtHR, Ignaccolo-Zenide v. Romania, appl.no. 31679/96, 25 January 2000.
ECtHR, Elsholz v. Germany, appl.no. 25735/94, 13 July 2000. ECtHR, Buchberger v. Austria, appl.no.
32899/96, 20 December 2001. ECtHR, P., C. and S. v. the United Kingdom, appl.no. 56547/00, 16
July 2002. ECtHR, Venema v. the Netherlands, appl.no. 35731/97, 17 December 2002. ECtHR,
Kosmopoulou v. Greece, appl.no. 60457/00, 05 February 2004. ECtHR, Haase v. Germany, appl.no.
11057/02, 08 April 2004 ECtHR, C. v. Finland, appl.no. 18249/02, 09 May 2006. ECtHR, Moser v.
Austria, appl.no. 12643/02, 21 September 2006.
(3) Decision making in the ECHR
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In Kaplan v. Austria (2007), the domestic courts did not comply with their duty to deal diligently
with the applicant’s request to grant her custody of her son. In X. v. Croatia (2008), the applicant
was excluded from the proceedings leading to the adoption of her daughter. In Jucius and
Juciuviené v. Lithuania (2008), the national courts had not adhered to a right to a speedy trial. In
Saviny v. Ukraine (2008), at no stage of the proceedings were the children heard by the judges. In
A.D. and O.D. v. the United Kingdom (2010), the Court found a violation because a child had not
been returned to the parents care immediately after a final assessment of their situation, which
should have led them to, but only after one and a half month. In Mustafa and Akin v. Turkey (2010),
the court of cassation did not address the two detailed submissions made by the applicants, but
merely held that the lower Court had “adequately examined the evidence available to it and that its
conclusion had been in accordance with the applicable legislation.” In Kurochkin v. Urkaine (2010),
the domestic authorities did not carry out a careful assessment of the impact which the annulment
of the adoption might have had on the future well-being of the orphan child or explore any other
less far-reaching alternatives. In Anayo v. Germany (2010), the court of appeal failed to give any
consideration to the question whether contact between the twins and the applicant would be in
the children’s best interest. ECtHR, Kaplan v. Austria, appl.no. 45983/99, 18 January 2007. ECtHR, X.
v. Croatia, appl.no. 11223/04, 17 July 2008. ECtHR, Jucius and Juciuviene v. Lithania, appl.no.
14414/03, 25 November 2008. ECtHR, Saviny v. Ukraine, appl.no. 39948/06, 18 December 2008.
ECtHR, A.D. and O.D. v. the United Kingdom, appl.no. 28680/06, 16 March 2010. ECtHR, Mustafa
and Akin v. Turkey, appl.no. 4694/03, 06 April 2010. ECtHR, Kurochkin v. Ukraine, appl.no.
42276/08, 20 May 2010. ECtHR, Anayo v. Germany, appl.no. 20578/07, 21 December 2010.
(3) Decision making in the ECHR
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In Schneider v. Germany (2011), the domestic courts had failed to give any consideration to the
question whether contact between child and the applicant would be in child’s best interest and
furthermore, they did not allow the applicant’s request to be given at least information about the
child’s personal development. In Kopf and Liberda v. Austria (2012), the domestic courts did not
comply with their duty under Article 8 to deal diligently with the applicants’ request for visiting
rights of their former foster child. In Karrer v. Romania (2012), no in-depth analysis was conducted
with a view to assessing the child’s best interests and the applicant was not given the opportunity
to present his case in an expeditious manner. In Strömblad v. Sweden (2012), the Court could not
find that the domestic courts dealt diligently with the applicant’s request to grant him custody of
his daughter. In M.D. and others v. Malta (2012), the paternity rights had been permanently
forfeited and there was a lack of access to a court to challenge the deprivation of parental rights at
a future date. In A.K. and L. v. Croatia (2013), the Court held that by not informing the first applicant
about the adoption proceedings of her child, the national authorities deprived her of the
opportunity to seek restoration of her parental rights before the ties between the biological parent
and child were finally severed by the child’s adoption. Finally, in B.B. and F.B. v. Germany (2013), the
Court considered that the domestic courts, in the main proceedings, did not provide sufficient
reasons for withdrawing the applicant’s parental rights. ECtHR, Schneider v. Germany, appl.no.
17080/07, 15 September 2011. ECtHR, Kopf and Liberda v. Austria, appl.no. 1598/06, 17 January
2012. ECtHR, Karrer v. Romania, appl.no. 16965/10, 21 February 2012. ECtHR, Stromblad v.
Sweden, appl.no. 3684/07, 05 April 2012. ECtHR, M.D. and others v. Malta, appl.no. 64791/10, 17
July 2012. ECtHR, A.K. and L. v. Croatia, appl.no. 37956/11, 08 January 2013. ECtHR, B.B. and F.B. v.
Germany, appl.nos. 18734/09 and 9424/11, 14 March 2013.
(3) Decision making in the ECHR
• In conclusion, in cases regarding the upbringing of children,
whether they regard custody disputes between parents, the placing
out of home of children or signing them up for adoption, the Court
relies principally and increasingly on the procedural elements of the
matters, such as:
• the right to be informed,
• the right to access to a court,
• the right to a speedy trial,
• the right to a hearing,
• the right to independent and balanced expert opinions,
• the right to take part in the decision making process and
• the right to a full and comprehensible explanation by the courts and
national authorities regarding their decisions.
(3) Decision making in the ECHR
• The acceptance of procedural safeguards has also had
an important effect on other aspects of article 8 ECHR,
such as
• Immigrants, who claim that their expulsion, the denial
to enter national territory or the refusal to grant them
a residence permit has grave impact on their family
life. Again, the Court is hesitant to allow applicants
substantive rights and freedoms and does not grant
complainants a right to a residence permit or a
legalized stay in a certain country. However, it is willing
to accept that the procedural requirements implicit in
Article 8 ECHR and the right to a fair decision-making
process also apply to the claims of immigrants.
(3) Decision making in the ECHR
• Health and medicine issues
• Mentally ill subjected to tests or containment
measures
• Legal capacity
• Administration of diamorphine
• Obtain a diagnosis of the foetus’ condition
• Tests within the time-limit for abortion
(3) Decision making in the ECHR
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The Court has transposed these notions to more general environmental cases and
the right to live in a clean and healthy living environment.
Guerra and others v. Italy (1998), the Court held that the applicant must be
involved in the decision-making processes, that he must have access to full and
comprehensive information and that the government should actively inform
citizens of existing environmental threats.
In Hatton and others v. the United Kingdom (2003), regarding noise pollution
caused by an airport, the Court noted that the governmental decision-making
process concerning complex issues of environmental and economic policy must
necessarily involve appropriate investigations and studies in order to allow them to
strike a fair balance between the various conflicting interests at stake.
In Taskin and others v. Turkey (2004), the Court again primarily focussed on the
procedural aspects of the case and found that the national court’s judgment to
close the operation of a gold mine was not effectuated within reasonable time and
the Court emphasized that where ‘administrative authorities refuse or fail to
comply, or even delay doing so, the guarantees enjoyed by a litigant during the
judicial phase of the proceedings are rendered devoid of purpose.’
In Giacomelli v. Italy (2006), In Grimkovskaya v. Ukraine (2011), In Vilnes and others
v. Norway (2013), etc. etc.
(4) Conclusion
• Questions:
• (1) Is focussing on the analysis of data a good
alternative to the acces-use debate?
• (2) Do the principles in the GDPR on this point
suffice?
• (3) What is the added value of the ECtHR
jurisprudence?
• (4) Is the focus on the decicion-making proces a
way for the ECtHR to extend the scope of the
right to privacy even further?