Artificial intelligence and prohibition of discrimination from the perspective of private law

Abstract

Artificial intelligence (AI) technologies promise to change our lives in positive way in many aspects while bringing along some risks. One of these risks is the possibility that decisions based on AI systems contain discrimination. Since the prohibition of discrimination is predominantly seen as a matter of public law, it may seem to be questionable to talk about the prohibition of discrimination in private law where principles of private autonomy and particularly freedom of contract prevail. Nevertheless, depriving individuals of the opportunity to enter into a fair and freely negotiated contract as a result of discrimination would be incompatible with the ideas underlying the freedom of contract. Moreover, since discrimination is insulting in most of the cases, it also violates the personal rights of the individual who is discriminated against. Thus, discrimination is an issue that also needs to be considered from the perspective of private law. As private law sanctions, nullity, compensation or an obligation to contract can be applied against discrimination. The fact that discrimination is the product of a decision-making mechanism using AI systems brings along some legal problems specific to this situation. One of these problems is that the results produced by some AI technologies are unexplainable since the reasons on which the decision is based must first be known to conclude that a decision is based on discrimination. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd 2024.