The interplay between the prohibitions in Article 5(1)(a) and (b) AI Act requires the delineation of the specific contexts that each provision covers to ensure that they are applied in a complementary manner.
The primary focus of the prohibition in Article 5(1)(a) AI Act is placed on the nature of the techniques, specifically those that operate below the threshold of conscious awareness or other purposeful ly manipulative or deceptive techniques. The key elements here are the primarily covert nature of the influence and its impact on the individual affected by the system that undermines their co gnitive autonomy to make informed and autonomous decisions.
By contrast, the primary focus of the prohibition in Article 5(1) (b) AI Act is the protection of particularly vulnerable persons due to their age, disability, or a specific social or economic situation, which are in principle more susceptible to AI exploitation due to inherent or situational factorsand, therefore, require additional protection against exploitation. The key elements here are the characteristics of the affected vulnerable persons and the fact that their specific vulnerabilities are being exploited by the AI system. For instance, if an AI system uses rapid image flashes to influence purchasing decisions, it may fall under Article 5(1)(a) AI Act due to the subliminal nature of the manipulation. Conversely, an AI system that targets older persons with insurance offers by exploiting their reduced cognitive capacity may fall under Article 5(1)(b) AI Act.
In scenarios where both provisions may seem applicable, the primary criterion for differentiation should be the dominant aspect of the exploitation. If the exploitation applies regardless of the specific vulnerabilities of the persons concerned, Article 5(1)(a) AI Act should take precedence, while taking into account the particular effects of the manipulative or deceptive technique on the vulnerable persons’ behaviour and the specific harms that those persons are likely to experience. If the AI-enabled manipulation and exploitation is targeted at a specific vulnerable group of persons due to their age, disability, or specific social or economic situation or aimed to exploit their vulnerabilities, then Article 5(1) (b) AI Act should be applied instead. Exploitation of vulnerabilities of other groups may be covered as part of Article 5(1)(a) AI Act if the purposefully manipulative practice leverage on specific vulnerabilities and weaknesses of those persons.