The right to an explanation in automated decision-making: A comparison between GDPR and Law 21.719

The text compares the new rules on personal data protection introduced by Law No. 21.719, which reforms the Chilean legal framework in this area, with the General Data Protection Regulation of the European Union (“GDPR”), paying special attention to the regulation of automated decision-making. From a detailed analysis, significant differences are identified between the two regimes, in particular, with respect to the level of human participation and the level of affectation the data subject must suffer for both rules to apply to a specific automated decision. The paper analyzes in detail the differences between the two bodies of law with respect to the regulation of the so-called right to an explanation. The Chilean legislator deliberately departed from the wording of Article 22 of the GDPR by explicitly enshrining this new right in Article 8 bis of the Chilean law. However, the inclusion of the right to an explanation poses significant technical and regulatory challenges, particularly with respect to its application to algorithmic or artificial intelligence systems. In this context, it will be up to the future Chilean Personal Data Protection Agency to develop interpretative criteria and regulatory guidelines that clarify the scope and content of this emerging right.