guidance

High-risk § 3.1.4

Point 1(c): Emotion recognition

Official source ↗

(171)

Point 1(c) of Annex III classifies emotion recognition systems as high-risk. Article 3(39) AI Act defines ‘emotion recognition systems’ as AI systems ‘ for the purpose of identifying or inferring emotions or intentions of natural persons on the basis of their biometric data’.

(172)

Serious concerns exist about the scientific basis of AI systems aiming to identify or infer emotions or intentions, particularly since the expression of emotions vary considerably across cultures and situations and even within a single individual. Emotion recognition systems are intrusive and present key shortcomings that may affect individuals’ fundamental rights . Among the key shortcomings of such systems are their limited reliability, their lack of specificity, and their limited generalisability.

(173)

While language-based AI social companions are not specifically classified as high-risk under the AI Act, it cannot be excluded that, in certain cases, they might be intended to be used for emotion recognition (identifying and inferring emotions or intentions based on biometric data from, e.g., voice or video calls) and therefore fall to be classified as high-risk pursuant to point 1(b) of Annex III AI Act. i. Identification and inference of emotions or intentions

(174)

The identification of emotions or intentions occurs where the processing of the biometric data (for example, the voice or a facial expression) of a natural person allows to directly compare and identify an emotion or intention with one that has been previously programmed in an emotion recognition system. Inferring occurs by deducing information generated by analytical and other processes by the system itself. In such a case, the information about the emotion is not solely based on data collected on the natu ral person, but is inferred from other data, including machine learning approaches that learn from data how to detect emotions or intentions24. Inferring generally encompasses identifying (of emotions or intentions) as a prerequisite, so an AI system intended to be used for inferring emotions or intentions should be understood as also identifying emotions or intentions25. ii. Emotions or intentions

(175)

The concept of emotions or intentions should be understood in a wide sense and not interpreted restrictively. Recital 18 AI Act provides some clarifications on this concept, listing emotions ‘such as happiness, sadness, anger, surprise, disgust, embarrassment, excitement, shame, contempt, satisfaction and amusement’. These examples are not exhaustive.

(176)

The AI Act should not be circumvented by referring to attitudes and therefore the high-risk use case in point 1(c) of Annex III includes cases where an AI system is intended to be used to find, based on biometric data, that a person is showing, for example, an angry attitude.

(177)

Recital 18 AI Act clarifies that emotions or intentions do not include ‘physical states, such as pain or fatigue, including, for example, systems used in detecting the state of fatigue of professional pilots or drivers for the purpose of preventing accidents’ (for example, identifying whether a person is sick is not emotion recognition). It further clarifies that emotion recognition systems do not include ‘the mere detection of readily apparent expressions, gestures or movements, unless they are used for identifying or inferring emotions’. Those expressions can be basic facial expressions, such as a frown or a smile, or gestures such as the movement of hands, arms or head, or characteristics of a person’s voice, such as a raised voice or whispering. However, when these readily apparent expressions or gestures are used for identifying or inferring emotions or intentions, they are covered by the concept of ‘emotions or intentions’.

a) Practical examples of AI systems falling within the high-risk use case of point 1(c)

b) Practical examples of AI systems falling outside the high-risk use case of point 1(c)

  1. See Recital 12 AI Act. Inferred data is hence also often the result of probability-based analytical (big data) processes aimed at finding correlations and finding patterns in data sets.
  2. Recital 18 AI Act.