Source: OJ L 119, 4.5.2016, pp. 1–88 · Consolidated text

Article 22 Automated individual decision-making, including profiling

Summary What does Article 22 of the GDPR regulation say?

This article establishes a core individual right under the GDPR: the right not to be subject to decisions made solely by automated means — including profiling — where those decisions produce legal or similarly significant effects on the individual.

It is not an absolute prohibition, however, as the article carves out three situations where such automated decision-making is permitted.

Even where those exceptions apply, controllers must still provide meaningful safeguards.

The article also connects directly to Article 9, imposing a stricter regime when special categories of personal data are involved in automated decisions.

Important points:

Data subjects have the right to not be subject to solely automated decisions that significantly affect them, unless specific exceptions apply.
Where automated decision-making is permitted under the contract or consent exceptions, controllers are required to implement safeguards including the right to human intervention, the ability to express a point of view, and the right to contest the decision.
Automated decisions based on special categories of personal data under Article 9 face additional restrictions and require suitable safeguards to be in place.

Springlex's summary of the article is a reading aid, not a substitute for the legal text.

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.
1. Paragraph 1 shall not apply if the decision:
  1. is necessary for entering into, or performance of, a contract between the data subject and a data controller;
  2. 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
  3. is based on the data subject's explicit consent.
1. 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.
1. 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.

Relevant recitals

Recital 71 Right against automated decision-making

The data subject should have the right not to be subject to a decision, which may include a measure, evaluating personal aspects relating to him or her which is based solely on automated processing and which produces legal effects concerning him or her or similarly significantly affects him or her, such as automatic refusal of an online credit application or e-recruiting practices without any human intervention. Such processing includes ‘profiling’ that consists of any form of automated processing of personal data evaluating the personal aspects relating to a natural person, in particular to analyse or predict aspects concerning the data subject's performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, where it produces legal effects concerning him or her or similarly significantly affects him or her. However, decision-making based on such processing, including profiling, should be allowed where expressly authorised by Union or Member State law to which the controller is subject, including for fraud and tax-evasion monitoring and prevention purposes conducted in accordance with the regulations, standards and recommendations of Union institutions or national oversight bodies and to ensure the security and reliability of a service provided by the controller, or necessary for the entering or performance of a contract between the data subject and a controller, or when the data subject has given his or her explicit consent. In any case, such processing should be subject to suitable safeguards, which should include specific information to the data subject and the right to obtain human intervention, to express his or her point of view, to obtain an explanation of the decision reached after such assessment and to challenge the decision. Such measure should not concern a child.

In order to ensure fair and transparent processing in respect of the data subject, taking into account the specific circumstances and context in which the personal data are processed, the controller should use appropriate mathematical or statistical procedures for the profiling, implement technical and organisational measures appropriate to ensure, in particular, that factors which result in inaccuracies in personal data are corrected and the risk of errors is minimised, secure personal data in a manner that takes account of the potential risks involved for the interests and rights of the data subject and that prevents, inter alia, discriminatory effects on natural persons on the basis of racial or ethnic origin, political opinion, religion or beliefs, trade union membership, genetic or health status or sexual orientation, or that result in measures having such an effect. Automated decision-making and profiling based on special categories of personal data should be allowed only under specific conditions.

Recital 72 Board's guidance on profiling

Profiling is subject to the rules of this Regulation governing the processing of personal data, such as the legal grounds for processing or data protection principles. The European Data Protection Board established by this Regulation (the ‘Board’) should be able to issue guidance in that context.

Table of contents

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