Generative AI and the rediscovery of the legitimate interest clause. Di Oreste Pollicino

When data protection law was introduced in Europe back in 1995, before the explosion of the digital era, there was hope that the golden rule of obtaining the “needed consent” from data subjects would grant them complete control over their personal data.

However, as society transitioned from the physical realm to the digital world and the algorithmic society took shape, this ideal became more of an illusion, akin to a fairy tale.

The belief in the effectiveness of consent as a substantial safeguard for control over personal data has vanished.

With the exponential growth of generated data and the increasing computational power driving the development of conventional AI (distinguished from “generative” AI), the role of consent as a significant control safeguard has diminished, giving way to a mere formalistic label that often fails to effectively protect data subjects.

However, a rediscovery of the clause of “legitimate interest” might prove a reasonable legal basis in the generative AI era.

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