Price discrimination, algorithmic decision-making, and European non-discrimination law

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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.