Digital welfare fraud detection and the Dutch SyRI judgment
| Author | Frederik Zuiderveen Borgesius,Marvin van Bekkum |
| DOI | 10.1177/13882627211031257 |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| Subject Matter | Articles |
Article
Digital welfare fraud detection
and the Dutch SyRI judgment
Marvin van Bekkum
Radboud University, Nijmegen, Gelderland, Netherlands
Frederik Zuiderveen Borgesius
Radboud University, Nijmegen, Gelderland, Netherlands
Abstract
In 2020, a Dutch court passed judgment in a case about a digital welfare fraud detection system
called Systeem Risico Indicatie (SyRI). The court ruled that the SyRI legislation is unlawful because it
does not comply with the right to privacy under the European Convention of Human Rights. In this
article we analyse the judgment and its implications. This ruling is one of first in which a court has
invalidated a welfare fraud detection system for breaching the right to privacy. We show that the
immediate effects of the judgment are limited. The judgment does not say much about automated
fraud detection systems in general, because it is limited to the circumstances of the case. Still, the
judgment is important. The judgment reminds policymakers that fraud detection must happen in a
way that respects data protection principles and the right to privacy. The judgment also confirms
the importance of transparency if personal data are used.
Keywords
GDPR, privacy, personal data, artificial intelligence, fraud detection, the Netherlands, law, SYRI,
discrimination, welfare
Introduction
In February 2020, the Court at First Instance in The Hague, the Netherlands, ruled in the SyRI case,
about an automated welfare fraud detection system called SyRI.
1
The court decided that the SyRI
Corresponding author:
Frederik Zuiderveen Borgesius, Professor ICT and law at the iHub and the Institute for Computing and Information
Sciences (iCIS), Radboud University, Houtlaan 4, Nijmegen, 6525 XZ, Netherlands.
E-mail: frederikzb@cs.ru.nl
1. NJCM et al. v The Dutch State (2020) The Hague District Court ECLI: NL: RBDHA:2020:1878 (SyRI). English
translation Available at: http://deeplink.rechtspraak.nl/uitspraak?id¼ECLI:NL:RBDHA:2020:1878.
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DOI: 10.1177/13882627211031257
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2021, Vol. 23(4) 323–340
legislation did not strike a fair balance between the interest in fraud detection on the one hand, and
the human right to privacy on the other. Therefore, the court declared that SyRI is unlawful. As the
UN Special Rapporteur on extreme poverty and human rights noted, this is one of the first cases in
which a court anywhere in the world stopped the use of digital welfare technologies on human
rights grounds.
2
In this article we analyse the judgment and its implications. We discuss the judgment in such a
way that lawyers who are not specialised in Dutch and European law can follow the discussion.
The following questions lead the discussion in this article. What was the Dutch SyRI system? What
are the main points of the SyRI judgment? What are the implications, if any, of the SyRI judgment
for state-run fraud detection systems and automated decision systems?
The article’s contributions to scholarship are the following. This is one of the most in-depth
scholarly discussions of the judgment to date. In addition, the article describes what SyRI is in
more detail than other publications, based on an examination of the legislative history of SyRI.
Moreover, there has not been much academic writing on the judgment in English (other scholarly
publications about the judgment in English are: Meuwese, 2020; Bekker, 2021; Wieringa, 2021).
There were academic publications in Dutch about the judgment; we refer to those publications
throughout the article.
The article is structured in sections as follows. First, we contextualise the SyRI judgment by
making some remarks about the digitalisation of the welfare state. Next, we explain what SyRI was
and its background. The next section introduces the group that sued the state and summarises the
judgment. In the following section, w e analyse the judgment, discuss the implications of the
judgment for fraud detection and automated decision systems, and highlight some developments
after the judgment. The final section concludes.
The digitisation of the welfare state can erode human rights
The Dutch SyRI legislation fits in with a worldwide trend in digitisation of the welfare state. The
Covid-19 virus has caused a financial crisis, causing more people to depend on welfare. In many
countries, governments aim to use new technology to make the welfare state more efficient and to
mitigate welfare fraud. However, this digitisation of the welfare state can also erode people’s
rights.
The U.N. Special Rapporteur on extreme poverty and human rights, Philip Alston, has
expressed his concern about the digital welfare state on several occasions. The Special Rapporteur
made a country visit to the United Kingdom in 2018. He noted that the ‘welfare state is gradually
disappearing behind a webpage and an algorithm, with significant implications for those living in
poverty’ (U.N. Human Rights Council, 2019: 13). According to the Special Rapporteur, more
transparency about how fraud detection systems work is required. He noted that ‘[i]n the absence
of transparency about the existence and workings of automated systems, the rights to contest an
adverse decision and to seek a meaningful remedy are illusory’ (U.N. Human Rights Council,
2019: 15).
2. U.N. Special Rapporteur on extreme poverty and human rights (2020) Landmark ruling by Dutch court stops gov-
ernment attempts to spy on the poor – UN expert. Available at: https://www.ohchr.org/EN/NewsEvents/Pages/Dis
playNews.aspx?LangID¼E&NewsID¼25522 (accessed 16 June 2021).
324 European Journal of Social Security 23(4)
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