Article 3(44) AI Act defines publicly accessible spaces as any publicly or privately owned physical space accessible to an undetermined number of natural persons, regardless of whether certain conditions for access may apply, and regardless of the potential capacity restrictions.
Recital 19 AI Act lists several elements that characterise such spaces:
- Accessibility to an undetermined number of persons, independently of the potential capacity or security restrictions, such as purchasing a ticket or title of transport, prior registration or having a certain age. The possibility of getting access to a space through an unlocked door does not mean that the space is publicly accessible if indications or circumstances suggest the contrary (such as a sign restricting access). Moreover, the access to a space can be limited to certain persons, as defined by law, linked to public safety or security, or to the decision of the person having the relevant authority over the space. For example, publicly accessible spaces are in principle:
- a concert venue for which participants pay an entrance fee.
- an event location where a trade fair is organised targeting participants over the age of 50. A space closed by a gate, even if the gate is unlocked, such as the gated entrance of a fenced residential area of several houses, will normally not be considered a publicly accessible space. By contrast, a park in a gated residence with public opening hours without any access restrictions during those hours will generally constitute a publicly accessible space during those hours and a closed space outside those hours.
- Irrelevance of ownership, i.e. a space does not need to be in public ownership for it to be considered as a publicly accessible space. For example, the space may be owned by a private entity, a public entity, or a public entity and managed by a private party, without impacting the nature of the space.
- No specific activity for which the space is used; a publicly accessible area is not necessarily a space linked to a public service. Moreover, a space linked to a public service may include non-publicly accessible spaces, i.e. the offices of the civil servants working at a municipality. For example, publicly accessible spaces may be used for commerce, such as shops, restaurants, cafés, etc.; for services, such as banks, professional activities (a doctor’s office as well as an accountant’s office), hospitality (e.g., a hotel), etc.; for sport, such as swimming pools, gyms, stadiums , etc. ; for transport, such as bus, metro and railway stations, airports, means of transport, etc.; for entertainment, such as cinemas, theatres, museums, concert and confe rence halls , etc. ; or for leisure or otherwise, public roads and squares, parks, forests, playgrounds.193
The following spaces do not constitute publicly accessible spaces within the meaning of Article 5(1)(h) AI Act:
- online spaces, since they do not constitute a physical space within the meaning of Article 3(44) AI Act. For example, chat rooms, social media, online platforms, etc., are therefore excluded from the scope of the prohibition.
- Certain spaces meant to be accessed by a limited number of persons, such as factories, companies and workplaces with entry control or limitations to relevant employees or service providers, since they are intended to be accessed only by relevant empl oyees and service providers.194 For example, a workplace accessible with a badge is in principle not considered a publicly accessible space, whereas an office without entry controls falls may be.
- prisons and border control are not publicly accessible spaces195
For example, a border crossing point is not a publicly accessible space, while the street leading to the border crossing point or a forest in the vicinity normally is.
Some spaces can have a dual function. For example, an airport is generally considered a publicly accessible space as regards its common areas, but the area dedicated to border control (where the customs officials stand and passports or ID checks occur) is excluded from the scope of the prohibition.
As clarified in Recital 19 AI Act, assessing whether a space is accessible to the public should be done based on a case-by-case analysis.