Regulating Gatekeeper Artificial Intelligence and Data: Transparency, Access and Fairness under the Digital Markets Act, the General Data Protection Regulation and Beyond

Abstract

Artificial intelligence (AI) is not only increasingly being used in business and administration contexts, but a race for its regulation is also underway, with the European Union (EU) spearheading the efforts. Contrary to existing literature, this article suggests that the most far-reaching and effective EU rules for AI applications in the digital economy will not be contained in the proposed AI Act, but in the Digital Markets Act (DMA). We analyse the impact of the DMA and related EU acts on AI models and underlying data across four key areas: disclosure requirements; the regulation of AI training data; access rules; and the regime for fair rankings. We demonstrate that fairness, under the DMA, goes beyond traditionally protected categories of non-discrimination law on which scholarship at the intersection of AI and law has focused on. Rather, we draw on competition law and the FRAND criteria known from intellectual property law to interpret and refine the DMA provisions on fair rankings. Moreover, we show how, based on Court of Justice of the European Union jurisprudence, a coherent interpretation of the concept of non-discrimination in both traditional non-discrimination and competition law may be found. The final section sketches out proposals for a comprehensive framework of transparency, access and fairness under the DMA and beyond.