Prohibitions § 7.2.1

Article 3(39) AI Act defines ‘emotion recognition systems’ as AI systems ‘for the purpose of identifying and inferring emotions or intentions of natural persons on the basis of their biometric data. The prohibition in Article 5(1)(f) AI Act does not refer to ‘emotion recognition systems’, but only to ‘AI systems to infer emotions of a natural person’. Recital 44 further clarifies that that prohibition covers AI systems ‘to identify or infer emotions.’

Inferring generally encompasses identifying as a prerequisite , so that t he prohibition should be understood as including both AI systems identifying or inferring emotions or intentions.¹⁵³ For consistency reasons, it is also important to construe the prohibition in Article 5(1)(f) AI Act as having a similar scope as the rules applicable to other emotion recognition systems (Annex III, point 1 (c), and Article 50 AI Act) and to limit it to inferences based on a person’s biometric data. The definition in Article 3(39) AI Act of emotion recognition systems should therefore be considered relevant in relatio n to Article 5(1)(f) AI Act.

‘Identification’ occurs where the processing of the biometric data (for example, of the voice or a facial expression) of a natural person allows to directly compare and identify an emotion with one that has been previously programmed in the emotion recognition system. ‘Inferring’ is done 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 natural person, but it is inferred from other data, including machine learning approaches that learn from data how to detect emotions.¹⁵⁴

For the purpose of Article 5(1)(f) AI Act, the concept of emotions or intentions should be understood in a wide sense and not interpreted restrictively. Recital 18 AI Act provides some detail, listing emotions ‘such as happiness, sadness, anger, surprise, disgust, embarrassment, excitement, shame, contempt, satisfaction and amusement’. These examples are not exhaustive.

The prohibition should not be circumvented by referring to attitudes, and includes cases where the AI system finds on the basis of the biometric data that a person is showing for example an angry attitude.

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.’ 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’, which should be understood to also apply to Article 5(1)(f) AI Act. 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 prohibition. For example,

• The observation that a person is smiling is not emotion recognition.
• Identifying whether a person is sick is not emotion recognition.
• A TV broadcaster using a device that allows to track how many times its news presenters smile to the camera is not emotion recognition.
• Concluding that a person is happy is emotion recognition. An AI system that infers that an employee is unhappy, sad or angry towards customers ( e.g., from body gestures, a frown or the lack of a smile) is ‘emotion recognition’.
• Systems inferring from voice or body gestures, that a student is furious and about to become violent, is ‘emotion recognition’.
• Using AI recognition systems to infer a professional pilot’s or driver’s fatigue to alert them and suggest when to take brakes to avoid accidents is not ‘emotion recognition’, since emotion recognition does not include physical states such as pain or fatigue.

According to the definition in Article 3(39) AI Act , only AI systems identifying or inferring emotions or intentions based on biometric data constitute emotion recognition systems.¹⁵⁵

Personal characteristics from which biometric data can be extracted are physical or behavioural attributes. Physiological biometrics employ physical, structural, and relatively static attributes of a person, such as their fingerprints, the pattern of their iris, contours of their face, or the geometry of veins in their hands. Some modalities are microscopic in nature , but still exhibit biological and chemical structures that can be acquired and identified e.g., DNA and odour.¹⁵⁶ Behavioural biometrics monitor the distinctive characteristics of movements, gestures, and motor-skills of individuals as they perform a task or series of tasks. This means that human movements , such as walking (gait analysis) or finger contact with a keyboard (keystrokes), are captured and analysed. Behavioural biometrics encompass a variety of modalities that exhibit both voluntary and involuntary repeated motions and associated rhythmic timings/pressures of body features ranging from signat ures, gait, voice, and keystrokes through to eye tracking and heartbeats , ¹⁵⁷ electroencephalography (EEG) ,¹⁵⁸ or electrocardiograms (ECG).¹⁵⁹ The biometric input can relate to one modality ( e.g., facial images) or multiple modalities ( e.g., facial information combined with electroencephalogram (EEG)). Recital 18 gives as examples facial expressions, gestures such as movement of hands or characteristics of a person’s voice. For example,

• An AI system inferring emotions from written text (content/sentiment analyses) to define the style or the tone of a certain article is not based on biometric data and therefore does not fall within the scope of the prohibition.
• An AI system inferring emotions from key stroke (way of typing), facial expressions, body postures or movementsis based on biometric data and falls within the scope of the prohibition.

The AI Act definition of biometric data is therefore broad and includes any biometric data used for emotion recognition, biometric categorisation or other purposes.¹⁶⁰