On October 31, 2024, the Dutch data protection authority (AP) requested public comments on the use of artificial intelligence (AI) systems for emotion recognition in the workplace or in education.

The placing on the market, putting into service for the specific purpose, or use of AI systems to infer emotions of a natural person in the workplace or in educational institutions is prohibited under Article 5(1)(f) of the EU AI Act, except where the use of the AI system is intended to be put in place or into the market for medical or safety reasons.

This follows the AP's request for comment on the prohibited AI systems under Articles 5(1)(a) and 5(1)(b) of the EU AI Act on September 27, 2024.

The provisions on prohibited AI systems under Article 5 of the EU AI Act enter into force on February 2, 2025.

Emotion recognition systems

Firstly, the AP highlighted the need to identify whether a product falls within the definition of an AI system under the EU AI Act. Secondly, regarding 'emotion recognition systems' specifically, the AP clarified that this includes systems that not only infer emotions and intentions, but also those that determine them on the basis of biometric data. Notably, the AP provided that emotion recognition systems not used in the workplace or in education would qualify as high-risk AI systems under the EU AI Act.

Regarding emotions alone, the AP noted that the prohibition does not include the detection of easily visible expressions, gestures, or movements unless they are used to recognize or infer emotions. The prohibition is also detailed not to apply to the derivation or determination of physical conditions such as pain or fatigue.

Furthermore, the prohibition applies to AI systems that use the biometric data of humans for emotion recognition. Although the EU AI Act contains a definition of biometric data, the AP provides that this must be interpreted in light of the definition of biometric data in the General Data Protection Regulation (GDPR). 'Biometric data' under Article 3(34) of the EU AI Act is defined as 'personal data resulting from specific technical processing relating to the physical, physiological, or behavioral characteristics of a natural person, such as facial images or dactyloscopic data.'

In addition, the AP outlined that the prohibition under Article 5(1)(f) of the EU AI Act applies to an AI system used for emotion recognition in a situation related to the workplace or education. AI systems used in home/remote working or online or distance learning environments would fall within the scope of the prohibition.

You can read the press release here and the policy document here, both only available in Dutch.