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Dissertation
Immaterialgüter- und Wettbewerbsrecht

The Legal Legitimacy of Behavioural Control of Natural Persons through State Social Scoring – A Comparative Legal Analysis between the EU and China

State social scoring is not only emerging within the rather prominent Chinese Social Credit System, but also in various fields in European countries. The question arises whether the current legal framework of the EU is adequate in dealing with these systems or whether changes are necessary.

Last Update: 05.07.21

Scoring is based on profiling, which can be defined as the usage of data to evaluate and predict characteristics and behaviours of natural persons. In scoring, the results of profiling are presented as numerical score values to support decisions about the individuals assessed. One can speak of social scoring, when there is a broader data basis. These data may come from various sources and are not necessarily in any obvious and direct relation to the facts to be decided.

Today, the amount of data collected on natural persons is increasing. Combined with the development of better analytical algorithms, this enables social scoring on a growing scale. Assuming that algorithm- and data-based decision-making is more efficient, effective and objective, European governments increasingly use social scoring in areas such as the judicial system, police work, social welfare and education. Parts of the emerging Chinese Social Credit System are likely to become much more far-reaching and pervasive. A comparative examination illustrates the potentials and risks of social scoring as an instrument of behavioural control. Depending on their concrete design and context, such systems can reinforce certain social and psychological factors that create strong incentives towards conformity. This results in issues concerning, amongst others, the self-determination and privacy of the persons affected, discrimination, transparency as well as state responsibility and accountability.

The thesis concentrates on the legal assessment of state social scoring from an EU law perspective. It starts with the requirements of legal legitimacy arising from fundamental rights and principles, such as the right to data protection, equality and the principle of democracy. This is followed by an analysis of whether the European data protection law provides an appropriate legal framework that already meets these requirements while recognising positive potentials of social scoring. At the end of this part, it is possible to point out strengths and deficiencies in the European legal framework from the perspective of fundamental rights and principles.

In the subsequent part, a limited analysis of the Chinese law and factual situation follows, mainly concentrating on the legal changes that are intended to give the relevant parts of the Social Credit System a legal basis. Attention is paid to the overarching political goals and societal background. Furthermore, the relationship of the Social Credit System with the dynamic evolution of the Chinese data protection regime is examined.

Lastly, the legal frameworks of the EU and China are compared to identify the strengths, weaknesses and potential for change in EU law with regard to enabling or prohibiting certain forms of state social scoring. This part aims to find concrete proposals to provide a reliable legal basis for systems that respect European fundamental rights and principles. Moreover, the proposals should minimise the problematic aspects.

Persons

Doctoral Student

Anja Geller

Main Areas of Research

II.3 Vernetzte Datenwirtschaft