Put Dialectics into the Machine: Protection against Automatic-decision-making through a Deeper Understanding of Contestability by Design

Abstract This paper endorses the idea that the right to contest provided for by art. 22, § 3 GDPR, actually is the apex of a progressive set of tools the data subject has at his disposal to cope with automatic decisions and it should work as an architectural principle to create contestable systems. But in order to achieve that important role, it cannot be reduce to the right of human intervention, also provided for by art.22, § 3, nor to a generic opposition to the outcome of the automatic processing. Thus, drawing from a thorough analysis of the relationships among the rights included in art. 22, § 3 GDPR as well as from the juridical proper meaning of “contestatio”, it is concluded that the right to contest has its own proper nature as a hybrid substantial-processual right that is able to give concrete shape to all the other rights indicated in art. 22, § 3, included the much discussed right to explanation.