Data Regulation: A Race to…?

From the era of codification, where the law was thought to be ‘just’ a code, to today’s hybrid world where (computer) code seems to become law – at least in the eyes of those who seem to have an interesting misconception about what ‘law’ actually means or should mean – it is about two centuries time difference. The change in approach, however, took less than 20 years. It leaves the law, law makers and lawyers looking at the backlights of the technology train, waiting on a platform that together with the railway station itself is already in a state of demolition. We look at the reality around us no longer as we did before with our senses, but we look at a screen in front of us and assume that reality is only there. If what we see around us is different from what we see on the screen Hegel’s famous phrase is applied “Umso schlimmer für die Tatsachen” (too bad for the facts). In today’s language what we see on the screen are then the supposedly more correct ‘alternative facts’. Fortunately, it is now more and more beginning to be realised not only by law makers, but also by the general public that the law has an impact on human relationships that stretches far beyond what computer code makes us believe. Sometimes one might get the impression that, for example, profiling of persons as if they are nothing more than their amalgamated data, under the condition, of course, that the data are properly analysed by Artificial Intelligence (with capitals ai), is the new image of human beings. It is, therefore, to be fully supported that the forthcoming Portuguese eu Presidency will promote the acceptance of a ‘Fundamental Digital Rights Charter’, stressing the importance of human intervention also in computer code driven systems and decision making processes.1 Fundamental human rights are the outer shell of the rule of