The Pitfalls of the European Union’s Risk-Based Approach to Digital Rulemaking


The European Union’s Artificial Intelligence Act takes a so-called risk-based approach to regulating artificial intelligence. In addition to being celebrated by industry, this risk-based approach is likely to spread due to the ‘Brussels Effect’ whereby EU legislation is taken as a model in other jurisdictions around the world. This article investigates how the AI Act’s risk-based approach works, how it deviates from previous ‘rights-based’ approaches, such as that of the General Data Protection Regulation (GDPR), and why this move away from a rights-based approach undermines the AI Act’s ability to provide effective protection for human rights in the context of AI systems.

About the Author

Daniel Leufer, PhD, is a Senior Policy Analyst at Access Now’s Brussels office. His work focuses on the impact of emerging technologies on digital rights, with a particular focus on artificial intelligence (AI), and biometrics. While he was a Mozilla Fellow, he developed, a website that gathers resources to tackle myths and misconceptions about AI. He has a PhD in Philosophy from KU Leuven in Belgium and is a member of the OECD Expert Group on AI Futures. Fanny Hidvegi joined the AI Collaborative, an Initiative of the Omidyar Group, as Policy Director in April 2024. For more than seven years Fanny was Access Now’s Europe Policy and Advocacy Director and led the organisation’s work on artificial intelligence and human rights as well. She also served as interim Policy Director of the global team. Fanny was a member of the European Commission’s High Level Expert Group on Artificial Intelligence and the Council of Europe’s Committee of Experts on Freedom of Expression and Digital Technologies. She is a member of the European Parliament STOA Committee’s International Advisory Board. Fanny is the chair of the board of the Hungarian Civil Liberties Union (HCLU). Fanny is part of the Mozilla Rise25 inaugural cohort, an Obama Foundation Europe Leader (’20) and a Marshall Memorial Fellow (’23). Fanny was selected to be a member of the POLITICO Tech 28 Class of 2022. Fanny is an advisor to Aspiration’s Policy Leadership Initiative and she’s part of the mentors for W@privacy. Previously, Fanny was International Privacy Fellow at the Electronic Privacy Information Center in Washington, D.C. where she focused on E.U.-U.S. data transfers. For three years Fanny led the Freedom of Information and Data Protection Program of the HCLU. There, she gained experience on how to operate as a human rights advocate in a restrictive environment. Fanny also worked as a consumer protection lawyer both in the public and the private sector.