The following AI practices shall be prohibited: d) the placing on the market, the putting into service for this specific purpose, or the use of an AI system for making risk assessments of natural persons in order to assess or predict the risk of a natural person committing a criminal offence , based solely on the profiling of a natural person or on assessing their personality traits and characteristics; this prohibition shall not apply to AI systems used to support the human assessment of the involvement of a person in a criminal activity, which is already based on objective and verifiable facts directly linked to a criminal activity;
Several cumulative conditions must be fulfilled for the prohibition in Article 5(1)(d) AI Act to apply:
The practice must constitute the ‘placing on the market’, ‘the putting into service for this specific purpose’ or the ‘use’ of an AI system.
The AI system must make risk assessments that assess or predict the risk of a natural person committing a criminal offence.
The risk assessment or the prediction must be based solely on either, or both, of the following: (a) the profiling of a natural person, (b) assessing a natural person’spersonality traits and characteristics.
For the prohibition to apply all three conditions must be simultaneously fulfilled. The first condition, i.e. the placing on the market, putting into service or use of the AI system, has been already analysed in section 2.3. The prohibition, therefore, applies to both providers and deployers of AI systems, each within their respective responsibilities not to place on the market, put into service , or use such AI systems for this specific purpose. The other two conditions for the prohibition to apply are analysed below.