Is That Your Final Decision? Multi-Stage Profiling, Selective Effects, and Article 22 of the GDPR


Provisions in many data protection laws require a legal basis, or at the very least safeguards, for significant, solely automated decisions; Article 22 of the GDPR is the most notable.

Little attention has been paid to Article 22 in light of decision-making processes with multiple stages, potentially both manual and automated, and which together might impact upon decision subjects in different ways.

Using stylised examples grounded in real-world systems, we raise five distinct complications relating to interpreting Article 22 in the context of such multi-stage profiling systems.

These are: the potential for selective automation on subsets of data subjects despite generally adequate human input; the ambiguity around where to locate the decision itself; whether ‘significance’ should be interpreted in terms of any potential effects or only selectively in terms of realised effects; the potential for upstream automation processes to foreclose downstream outcomes despite human input; and that a focus on the final step may distract from the status and importance of upstream processes.

We argue that the nature of these challenges will make it difficult for courts or regulators to distil a set of clear, fair and consistent interpretations for many realistic contexts.