Article 5, Artificial intelligence prohibited practices, Artificial Intelligence Act (Proposal 25.11.2022)
1. The following artificial intelligence practices shall be prohibited:
(a) the placing on the market, putting into service or use of an AI system that deploys subliminal techniques beyond a person’s consciousness with the objective to or the effect of materially distorting a person’s behaviour in a manner that causes or is reasonably likely to cause that person or another person physical or psychological harm;
(b) the placing on the market, putting into service or use of an AI system that exploits any of the vulnerabilities of a specific group of persons due to their age, disability or a specific social or economic situation, with the objective to or the effect of materially distorting the behaviour of a person pertaining to that group in a manner that causes or is reasonably likely to cause that person or another person physical or psychological harm;
(c) the placing on the market, putting into service or use of AI systems for the evaluation or classification of natural persons over a certain period of time based on their social behaviour or known or predicted personal or personality characteristics, with the social score leading to either or both of the following:
(i) detrimental or unfavourable treatment of certain natural persons or groups thereof in social contexts which are unrelated to the contexts in which the data was originally generated or collected;
(ii) detrimental or unfavourable treatment of certain natural persons or groups thereof that is unjustified or disproportionate to their social behaviour or its gravity; (d) the use of ‘real-time’ remote biometric identification systems in publicly accessible spaces by law enforcement authorities or on their behalf for the purpose of law enforcement, unless and in as far as such use is strictly necessary for one of the following objectives:
(d) the use of ‘real-time’ remote biometric identification systems in publicly accessible spaces by law enforcement authorities or on their behalf for the purpose of law enforcement, unless and in as far as such use is strictly necessary for one of the following objectives:
(i) the targeted search for specific potential victims of crime;
(ii) the prevention of a specific and substantial threat to the critical infrastructure, life, health or physical safety of natural persons or the prevention of terrorist attacks;
(iii) the localisation or identification of a natural person for the purposes of conducting a criminal investigation, prosecution or executing a criminal penalty for offences, referred to in Article 2(2) of Council Framework Decision 2002/584/JHA and punishable in the Member State concerned by a custodial sentence or a detention order for a maximum period of at least three years, or other specific offences punishable in the Member State concerned by a custodial sentence or a detention order for a maximum period of at least five years, as determined by the law of that Member State.
2. The use of ‘real-time’ remote biometric identification systems in publicly accessible spaces for the purpose of law enforcement for any of the objectives referred to in paragraph 1 point d) shall take into account the following elements:
(a) the nature of the situation giving rise to the possible use, in particular the seriousness, probability and scale of the harm caused in the absence of the use of the system;
(b) the consequences of the use of the system for the rights and freedoms of all persons concerned, in particular the seriousness, probability and scale of those consequences. In addition, the use of ‘real-time’ remote biometric identification systems in publicly accessible spaces for the purpose of law enforcement for any of the objectives referred to in paragraph 1 point d) shall comply with necessary and proportionate safeguards and conditions in relation to the use, in particular as regards the temporal, geographic and personal limitations.
3. As regards paragraphs 1, point (d) and 2, each use for the purpose of law enforcement of a ‘real-time’ remote biometric identification system in publicly accessible spaces shall be subject to a prior authorisation granted by a judicial authority or by an independent administrative authority of the Member State in which the use is to take place, issued upon a reasoned request and in accordance with the detailed rules of national law referred to in paragraph 4. However, in a duly justified situation of urgency, the use of the system may be commenced without an authorisation provided that, such authorisation shall be requested without undue delay during use of the AI system, and if such authorisation is rejected, its use shall be stopped with immediate effect.
The competent judicial or administrative authority shall only grant the authorisation where it is satisfied, based on objective evidence or clear indications presented to it, that the use of the ‘real-time’ remote biometric identification system at issue is necessary for and proportionate to achieving one of the objectives specified in paragraph 1, point (d), as identified in the request. In deciding on the request, the competent judicial or administrative authority shall take into account the elements referred to in paragraph 2.
Important note: This is not the final text of the Artificial Intelligence Act. This is the text of the proposal from the Council of the European Union (25.11.2022).
The Articles of the EU Artificial Intelligence Act, proposal from the Council of the European Union (25.11.2022):