The Right to Explanation of Automated Decisions under the GDPR: The Issues of Explainability of AI Outputs and Protection of Trade Secrets

The note deals with the first ECJ’s judgment which recognized the right to explanation of automated decisions under the GDPR. The Court stated that the right to obtain meaningful information about the logic involved in automated decision-making must be understood as a right to an explanation. It identified the counterfactual method as a possible explanation of complex algorithms’ outputs. On the other hand, it required a balancing with the protection of trade secrets. The case note focuses on two main points. Firstly, it elaborates on the adequacy of the counterfactual method to provide sufficient explanation of AI systems’ outputs. Secondly, it underlines how the balancing envisaged by the Court could hinder accountability of automated decisions. Therefore, it stresses that the protection of trade secrets could only exceptionally justify the refusal of the explanation of an automated decision.