As mentioned before, out of scope are:
- AI systems inferring emotions and sentiments not on the basis of biometric data,
- AI systems inferring physical states such as pain and fatigue.
Emotion recognition systems used in all other domains other than in the areas of the workplace and education institutions do not fall under the prohibition in Article 5(1)(f) AI Act. Such systems are, however, considered high-risk AI systems .171 At the same time, such systems may be prohibited in certain cases by virtue of Article 5(1)(a) and
AI Act (harmful manipulation and exploitation) , or by virtue of other Union legislation. All other applicable legislation , such as U nion data protection law, consumer protection etc. continue to apply to such systems. For example, Emotion recognition systems used in a commercial context for addressing customers do not fall under the prohibition of Article 5(1)(f) AI Act, whether based on biometric data or not. Hence, examples such as AI systems that enable emotion recognition based on keystroke or based on voice messages of customers ( e.g., chat messages, use of virtual voice assistants) , used in online marketing for applications for displaying personalized messages and for advertisement purposes including in smart environments (‘intelligent billboards’)are not covered by the prohibition. Nevertheless, such practices may be covered by the prohibitions of harmful manipulation and exploitation in Article 5(1)(a) and (b) AI Act,172 if all conditions for the application of those prohibitions are met.
a) Other systems out of scope
‘Crowd control’ generally refers to the control and monitoring of the behaviour of groups to maintain (public) order and event safety. It is often associated with large crowd events (e.g., soccer or football games, concerts, etc) or specific places, such as airports or trains. Crowd control systems can operate without inferring emotions of individual persons, when for example analysing the general noise and mood level at a given place. In that case, the system would not fall within the scope of Article 5(1)(f) AI Act, because it does not infer emotions of (a concrete) natural person.
However, there may be instances where such crowd control systems infer emotions of individuals, for example whether there are many angry faces. Normally, such AI systems would not fall under the prohibition of Article 5(1) (f) AI Act, since they are typically not used in the workplace or in education institutions.
Also out of scope are systems that are used in the medical field for example care robots, or medical practitioners using emotion recognition systems during an examination at their workplace, and voice monitors that analyse emergency calls.
Such systems will often screen persons that are there in a work context, for example the security staff at a football stadium or at a central station (where such systems are used to recognize aggressive behaviour) , or employees in the medical field. In such cases, deployers must employ safeguards to avoid the screening of employees. However, it cannot be completely avoided that such systems also infer the emotions of those employees. Since the primary objective of the system is not targeted at assessing employees’ emotions, these systems should be considered to be outside the scope ofthe prohibition. Deployers of such systems remain responsible to ensure that employees are not adversely affected by their use.