GDPR Updates: First Fine In Sweden And UK Guidance On The Interplay Between The GDPR And Artificial Intelligence

Author:Mr Dotan Hammer
Profession:Pearl Cohen Zedek Latzer Baratz

First GDPR Fine in Sweden. The Data Protection Authority of Sweden has issued its first GDPR fine - a penalty of 200,000 Swedish Krona (approximately $20,000) - for the unlawful use of facial recognition technology to monitor student attendance at a local high-school in Sweden. The Swedish regulator held that the local school board had violated the GDPR in several ways. First, the use of facial recognition technology was found to be excessively intrusive considering the purpose of monitoring student attendance, in violation of the GDPR's Article 5(1)(c) that lays down the 'data minimization' principle.

Second, under the GDPR's Article 9, facial recognition data comprises 'special categories of data', which in turn may only be processed pursuant to a recognized legal basis for this type of data. One of the permissible bases for processing facial recognition data is the data subject's explicit consent. The school board attempted to rely on this basis, arguing that all the students and their parents had given consent. However, the Swedish regulator held that the permission given by students, in this case, did not qualify for the GDPR-required consent, because it was not a voluntarily given and freely chosen decision by the students, considering the imbalance of power and dependence between the students and the school.

Finally, the school was found to violate Article 35 of the GDPR which requires conducting a documented Data Protection Impact Assessment (DPIA) before engaging in data processing that entails elevated data protection risks, such as facial recognition monitoring.

The Swedish regulator justified the relatively modest fine due to two mitigating circumstances: the relatively brief duration of the facial recognition project at the school - just three weeks - and the relatively small number of students monitored - only 22.

CLICK HERE to read the Swedish privacy regulator's decision (in Swedish).

UK Commentary on Artificial Intelligence under the GDPR. The UK's privacy watchdog, the Information Commissioner's Office (ICO), continues publishing commentaries on the interplay between Artificial Intelligence (AI) technology, specifically Machine Learning (ML) systems, and the GDPR. This month, the ICO published notes on data minimization and privacy-preserving techniques in ML systems, as well as on fully automated decision making in ML systems.

The GDPR's data minimization principle, codified in Article 5(1)(c), requires that data...

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