Algorithm-based discrimination by using artificial intelligence. Comparative legal considerations and relevant areas of application

Abstract

With increasing digitalisation and the widespread use of artificial intelligence, it is important that the programmes are neutral in terms of ethical values. Otherwise, there is a risk of discrimination against individuals. Previous examples show that discrimination has already occurred with facial recognition software and word embedding, among others. The article outlines some cases of algorithm-based discrimination, takes a comparative look at American anti- discrimination laws and points out the German constitutional framework. Of interest is whether Article 3 of the German Constitution also has effect in civil law relations. Subsequently, the application of some practice-relevant areas is analysed. Are the existing norms of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) sufficient? Furthermore, the question is examined whether AI may make decisions independently or whether a human person must always intervene.