Transparency and explainability requirements in relation to, for example, bias mitigation raise questions around the intersection of the rights of individuals and intellectual property and trade secrecy laws. A business’s own AI system may be covered by intellectual property and trade secrecy legislation. In addition, in some contexts, businesses may be entitled to the protection of some specific rights under the ECHR, such as property rights (Article 1 Protocol 1 ECHR, which includes intellectual property)[1] or the freedom of expression (Article 10 ECHR)[2].

If rights holders claim that AI systems operated by private businesses abuse their rights, the State's response may need to balance these competing interests. For instance, the obligation to provide essential information for the public may conflict with a business's intellectual property rights (protected by the right to property – Article 1 of Protocol 1 of the ECHR). Domestic courts or regulators should carefully weigh these interests to ensure a fair and proportionate outcome.

The Framework Convention’s drafters noted in connection with the principle of transparency (article 8 of the Framework Convention) that “in implementing this principle, Parties are required to strike a proper balance between various competing interests and make the necessary adjustments in the relevant frameworks without altering or modifying the underlying regime of the applicable human rights law”.[3]

In the context of algorithmic systems, the Recommendation of the Committee of Ministers CM/Rec(2020)1 on the human rights impacts of algorithmic systems provides that legislative frameworks for intellectual property or trade secrets should not preclude transparency or be exploited to obstruct accountability, nor should confidentiality or trade secrets inhibit effective human rights impact assessments.[4] Furthermore, States should establish appropriate levels of transparency with regard to the public procurement, use, design, and basic processing criteria and methods of algorithmic systems implemented by and for them, or by private sector actors.[5]

 

[1] Anheuser-Busch Inc. v. Portugal [GC], No. 73049/01, 11 January 2007, § 72.

[2] Axel Springer AG v. Germany [GC], No. 39954/08, judgment of 7 February 2012.

[4] CM/Rec(2020)1, § 5.2

[5] Idem, § 4.1 The transparency levels in question should be as high as possible and proportionate to the severity of adverse human rights impacts. The use of such systems in decision-making processes that carry high risk to human rights should be subject to particularly high standards.

 

Back to Business and Human Rights