Article
Price discrimination, algorithmic decision-making, and European non-discrimination law
European Business Law Review
(2020)
Abstract
Our society can benefit immensely from algorithmic decision-making and similar types of artificial intelligence. But algorithmic decision-making can also have discriminatory effects. This paper examines that problem, using online price differentiation as an example of algorithmic decision-making. With online price differentiation, a company charges different people different prices for identical products, based on information the company has about those people. The main question in this paper is: to what extent can non-discrimination law protect people against online price differentiation? The paper shows that online price differentiation and algorithmic decision-making could lead to indirect discrimination, for instance harming people with a certain ethnicity. Indirect discrimination occurs when a practice is neutral at first glance, but ends up discriminating against people with a protected characteristic, such as ethnicity. In principle, non-discrimination law prohibits indirect discrimination. The paper also shows, however, that non-discrimination law has flaws when applied to algorithmic decision-making. For instance, algorithmic discrimination can remain hidden: people may not realise that they are being discriminated against. And many types of unfair – some might say discriminatory – algorithmic decisions are outside the scope of current non-discrimination law.
Keywords
- price discrimination,
- price differentiation,
- personalised pricing,
- dynamic pricing,
- algorithmic decision-making,
- big data,
- artificial intelligence,
- fairness,
- law,
- equality,
- non-discrimination law,
- human rights,
- fundamental rights.
Disciplines
Publication Date
Spring 2020
Citation Information
Frederik Zuiderveen Borgesius. "Price discrimination, algorithmic decision-making, and European non-discrimination law" European Business Law Review Vol. 31 Iss. 3 (2020) p. 401 - 422 ISSN: 0959-6941 Available at: http://works.bepress.com/frederik-zuiderveenborgesius/5/