Constitutional Protection Of Personal Data Right Under Automated Decision-Making:A Comparison Between France And Germany

The famous writer Don De Lillo once said: "This is what technology is about:it creates the desire for immortality while threatening to destroy the world.Technology is divorced from the greed of nature." Technology helps solve our greatest challenges,but it also risks the rights that make us free men.With the continuous development of Internet technology,automatic decision-making is widely used in life,which not only brings great convenience to people’s life,but also poses many risks and challenges to personal rights and interests.As an important fundamental constitutional right,personal data right has been paid more and more attention by many countries.Different countries have developed different forms of constitutional protection models for personal data according to their own national conditions.France and Germany,both members of the European Union,attach great importance to the constitutional protection of personal data,and their constitutional protection models of personal data are representative in the world.But at the same time,there are distinct differences in the forms of personal data rights between the two.This paper adopts the comparative analysis method to analyze and compare the constitutional protection systems of personal data in France and Germany,in order to find a constitutional protection model that can better adapt to the risks and challenges brought by automated decision-making,which has important reference significance for various countries,including China,to establish a constitutional protection model of personal data which is suitable for their own national conditions.As a kind of decision making behavior based on automatic processing of certain technology,automatic decision making will bring risks of privacy,autonomy,discrimination and transparency to individual rights and interests.It can directly or indirectly interfere with personal privacy through association,deduction of personal data,real-time monitoring and other ways,thus causing privacy risks.It can also influence individuals’ subconscious through indirect guidance or induction,such as push and a feedback loop,thus causing autonomy risk.The risk of discrimination is also a risk challenge inherent in automated decision-making that involves classifying people,especially indirect discrimination.In addition,since algorithms can be made automatically in a secret state that people cannot detect and recognize,transparency risks will also arise.Facing the risk and challenge of automated decision making,many countries have tried to solve this risk and challenge by establishing and perfecting individual data rights at the constitutional level.However,personal data right is not the birthright in the constitutional documents of various countries,but has undergone a transformation process from the element of privacy to an independent basic right,from ordinary right to basic right.It is a collection of various values and legal rights,including not only external specific rights,responsibilities and obligations,but also the internal value system including privacy,equality,autonomy and transparency.The internal value system is a more core part.Whether to better protect this internal value system is an important standard to evaluate a country’s constitutional protection system of personal data.In addition,there are similarities and differences in the specific expression and forms of personal data rights in various countries.Among them,France and Germany are the most representative in terms of expression and right form of personal data protection.France built up the constitutional protection system of personal data based on the right to privacy,while Germany creatively created the right to information self-determination,and built up the constitutional protection system of personal data in Germany.The constitutional protection models of personal data in France and Germany are both typical and comparable.By the personal data protection system in constitution of both automated decision-making to the intrinsic value of the personal data right system risk challenge scenes,comparison of the two system in protecting the rights of personal data four differences in intrinsic value,you can find more suitable for the automated decision-making risk challenge personal data protection mode.Through the comparison,it is found that there is a great similarity in the overall requirements of personal data protection at the constitutional level.However,they are significantly different from each other in terms of right creation institution,right form and right foundation.France introduced privacy to protect personal data on the basis of right of liberty through constitutional Committee,while Germany created the right of information self-determination on the basis of right of personality through constitutional court.In addition,the more important difference lies in the application standard of the principle of proportionality and the scope of rights protection.Germany has a higher application standard of the principle of proportionality and a wider scope of rights protection.These differences leave France and Germany far apart in addressing the challenges of privacy,autonomy,equality and transparency risks posed by automated decision-making.By comparison,it can be found that the German constitutional protection model of personal data is more consistent with the contemporary protection of personal data.The real challenge that the whole world,including our country,is facing or will face is the risk and challenge that information technology,such as automated decision making,brings to the rights and interests of individuals.The constitutional protection system of personal data rights in France and Germany has provided important enlightenment for all countries in the world in terms of protection mode,right establishment and its guarantee institutions,right basis,application of the principle of proportion,and specific application of the system in the protection of privacy,autonomy,transparency and equality.Taking China as an example,China should combine the actual situation of Our country and fully learn from the Constitutional protection system of personal data rights in Germany to incorporate the right of personal information into the Constitution and establish a constitutional protection system of personal information rights with the right of personal information as the core and several constitutional rights as the supplement.At the same time,China’s constitutional review system is constantly improved to ensure the implementation of the right to personal information.