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ARTICLE · 24 DECEMBER 2024

Data Protection And Training AI Models: Deployers Must Assess Whether The Models They Use Were Developed Lawfully

Norton Rose Fulbright Hong Kong
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The EDPB's Opinion clarifies GDPR implications for AI models, emphasizing the case-by-case assessment of anonymization, legitimate interests, and the impact of unlawfully processed personal data, urging robust AI governance and compliance.

United KingdomPrivacy
Marcus Evans
Marcus Evans
Rosie Nance
Rosie Nance

The European Data Protection Board (EDPB) was asked by the Irish supervisory authority to issue an Opinion under Article 64(2) General Data Protection Regulation (GDPR) on AI models and processing personal data (the Opinion). The Opinion sets out the EDPB's answers to the four questions the Irish supervisory authority put to it.

1. When and how AI models can be considered 'anonymous'

The EDPB considers that AI models trained with personal data cannot, in all cases, be considered anonymous. Anonymity must be assessed on a case-by-case basis. For an AI model to be considered anonymous, both (1) the likelihood of direct (including probabilistic) extraction of personal data regarding individuals whose personal data were used to develop the model and (2) the likelihood of obtaining, intentionally or not, such personal data from queries, should be insignificant, taking into account 'all the means reasonably likely to be used' by the controller or another person. It

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