Prohibited AI Practices
The content specifically addresses prohibited AI practices under the AI Act, which is a distinct regulatory concept not adequately covered by existing topics. This requires its own topic to capture the specific restrictions, enforcement mechanisms, and compliance requirements.
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Overview
Legal Framework
The AI Act establishes a specific regime for prohibited AI practices, which is a distinct regulatory concept. The primary legal basis for these prohibitions is found in the operative articles of the AI Act (Articles 5 et seq.), which are given context by Recitals 9 and 46. Recital 46 clarifies that certain AI practices are considered to pose an unacceptable risk to safety, livelihoods, and fundamental rights, thus warranting an outright ban rather than mere risk mitigation. Recital 9 anchors the Act within the New Legislative Framework, indicating that these prohibitions are harmonised rules directly applicable across the EU.
The law explicitly prohibits AI practices that contravene Union values. These include, but are not limited to: AI systems deploying subliminal techniques or exploiting vulnerabilities to materially distort a person's behaviour in a manner that causes harm; 'social scoring' by public authorities leading to detrimental treatment; and the use of 'real-time' remote biometric identification in publicly accessible spaces for law enforcement, with narrowly defined exceptions.
Practical Application
The prohibited practices are defined as having an intrinsically harmful purpose or effect. Unlike the regime for high-risk AI systems, which focuses on compliance with mandatory requirements to manage risk, the rules on prohibited practices are absolute bans. Enforcement will be the responsibility of national market surveillance authorities, who can order the withdrawal or recall of non-compliant systems. The interpretation of key terms like "subliminal techniques," "material distortion," and "detrimental treatment" will be crucial in enforcement and will likely be shaped by guidance from the European AI Office and subsequent case law. For instance, the prohibition on exploiting vulnerabilities will require an assessment of the specific circumstances of the user group (e.g., children, persons with disabilities) and the context of use.
Key Considerations
- Conduct a Purpose Audit: Scrutinise the intended purpose and design of your AI system. A practice is prohibited based on its objective functionality and intended use, regardless of its technical safety. Systems designed for subliminal manipulation or social scoring are unlawful per se.
- Assess the Operational Context: For practices like remote biometric identification, the legality hinges entirely on the specific operational context (e.g., "real-time" use in "publicly accessible spaces" for a predefined law enforcement purpose). Any deployment outside the exhaustively listed exceptions in the Act is prohibited.
- Proactive Design Compliance: Given the absolute nature of the bans, compliance must be engineered into the system from the initial design phase. Relying on post-hoc mitigations is not sufficient for practices falling under Article 5.
Laws (79)
View all 79Article 22
Authorised representatives of providers of high-risk AI systems
Article 26
Obligations of deployers of high-risk AI systems
Article 27
Fundamental rights impact assessment for high-risk AI systems
Article 60
Testing of high-risk AI systems in real world conditions outside AI regulatory sandboxes
Article 71
EU database for high-risk AI systems listed in Annex III
Article 72
Post-market monitoring by providers and post-market monitoring plan for high-risk AI systems
HIGH-RISK AI SYSTEMS
EU DATABASE FOR HIGH-RISK AI SYSTEMS
PROHIBITED AI PRACTICES
Article 5
Verboden AI-praktijken
Recital 7
Recital 9
Recital 26
Recital 46
Recital 49
Recital 52
Recital 54
Recital 56
Recital 58
Case Law (4)
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Rechtbank Zeeland-West-Brabant
Rechtbank Zeeland-West-Brabant
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Rechtbank Zeeland-West-Brabant
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