Data protection considerations for integrating Generative AI in the workplace

The rise of Generative AI (GenAI) has been phenomenal and swift, transforming various industries and business operations with its capabilities. Primarily used for natural language understanding and generation, GenAI is used for myriad tasks including content creation, chatbot development, programming, and language translation. Used correctly, GenAI promises increased efficiencies and productivity. However, the introduction of GenAI products into the workplace requires careful assessment and governance to ensure compliance with data protection regulations and the safeguarding of individual rights.

Conducting a Data Protection Impact Assessment (DPIA)

One of the first steps organisations should take when introducing GenAI tools is to conduct a Data Protection Impact Assessment (DPIA). A DPIA enables organisations to assess the impact of the envisaged processing operations on the protection of personal data. It is a crucial step, especially when personal data processing is likely to result in a high risk to the rights and freedoms of individuals. The DPIA should identify potential risks, evaluate their severity, and propose measures to mitigate them.

Risks attaching to GenAI products may not all be immediately obvious. GenAI systems process and are trained on vast quantities of data, which brings risk of data leakage, privacy violations, and ethical concerns including due to hidden biases and flawed algorithms. An expansive perspective is needed to comprehensively assess these risks.  

Considering data transfer implications

Many GenAI providers are located overseas, which means organisations must consider the implications of data transfers under the General Data Protection Regulation (GDPR). The GDPR mandates that organisations must ensure the privacy and security of individual rights and data, even when data is transferred outside the UK and/or European Economic Area. Organisations should determine whether a data transfer is occurring and, if so, ensure that appropriate safeguards are in place.

The European Data Protection Board in its Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR sets out the criteria for identifying data transfers. Organisations should consult these guidelines closely. It may be necessary to garner a detailed understanding of the functions, server locations, and operations of the GenAI product, to apply the criteria correctly.

Accountable compliance with GDPR

Organisations must fulfil the principle of accountability, which includes demonstrating compliance with data protection principles, ensuring data privacy by design, and maintaining records of processing activities. They should also ensure that data subjects are informed about how their data is being used and have mechanisms in place to address any data protection concerns.  

Regular audits and evaluations of the AI systems should be conducted to identify and mitigate any biases. Additionally, organisations should establish clear guidelines and policies for the ethical use of GenAI, ensuring that it is used responsibly and transparently.

Any introduction of GenAI into the day-to-day operations of the business will likely require changes to privacy notices, documented decision making with supporting evidence, and appropriate contractual protections.  Legal advice may be necessary, depending upon the nature and types of data you intend to input into the system – the uses to which you may put the results. Proper implementation is key and may take time, but the benefits of correctly implemented GenAI could be enormous. 

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