Every AI tool your company uses or builds has two sides. One is the model. The other is the data behind it: customer emails, CRM records, support tickets, photos, and posts scraped from the public web. When any of that data relates to an identifiable person, the General Data Protection Regulation (GDPR) applies.
That is not new. What is new is how much regulators, courts and lawmakers have now said about it. With guidance from the European Data Protection Board (EDPB), rulings from the EU Court of Justice and the EU AI Act being phased in, “we’ll deal with privacy later” is no longer an option in 2026.
Why the GDPR applies to AI at every stage
The GDPR (Regulation (EU) 2016/679) covers any “processing” of personal data, and AI systems process it at three points:
- Training. Datasets often contain names, faces, voices or behavioural data, collected directly or scraped from the web.
- Inference. Prompts typed into a chatbot, or customer data fed into a scoring model, are processed every time the system runs.
- Outputs. A model can generate statements about real people, including false ones.
The model itself can be in scope too. In Opinion 28/2024, adopted on 17 December 2024, the EDPB said that AI models trained on personal data cannot automatically be treated as anonymous. A model counts as anonymous only if the likelihood of extracting personal data from it, or getting that data out through queries, is “insignificant”. This is assessed case by case, and the burden of documenting it falls on you.
Legal bases for training: legitimate interest vs. consent
Under Article 6 GDPR, every processing operation needs a legal basis. For AI training, the realistic options are usually consent (Art. 6(1)(a)) and legitimate interest (Art. 6(1)(f)).
Consent has to be freely given, specific, informed and easy to withdraw, which rarely works at scale or for scraped data. That is why most large developers rely on legitimate interest. The EDPB has confirmed that this can be a valid basis, but only after a documented three-step test:
- Legitimate interest. Lawful, clearly articulated, and real and present (the EDPB’s examples include building a conversational agent or detecting fraud).
- Necessity. The processing must actually serve that interest, and there must be no less intrusive way to achieve it, which makes data minimisation central.
- Balancing. People’s rights and reasonable expectations must not override that interest. Safeguards such as filtering and easy opt-outs can tip the balance.
Meta is a useful example. In June 2024 it paused plans to train its models on EU users’ public posts after the Irish Data Protection Commission (DPC) raised concerns. After the EDPB opinion, Meta added safeguards such as de-identification and objection forms and set 27 May 2025 as its start date, relying on legitimate interest. The DPC did not prohibit the processing, and on 23 May 2025 the Higher Regional Court of Cologne rejected a consumer group’s request for an urgent injunction.
Special categories of data, such as health or biometric data, are stricter still: Article 9 requires a specific exception, and legitimate interest alone is not enough.
The core principles, applied to AI
Article 5 GDPR sets out the principles that regulators return to again and again:
- Purpose limitation. Data collected to deliver a service cannot automatically be reused for training. Reuse needs a compatibility assessment or a new legal basis.
- Data minimisation. “Collect everything just in case” is the opposite of what the law requires. Filter datasets and pseudonymise where you can.
- Transparency. Articles 13 and 14 require you to tell people how their data is used, including people whose data you obtained indirectly.
- Accuracy. Generative AI can “hallucinate” false facts about real people, and inaccurate personal data must be corrected or erased.
Automated decisions and Article 22
Article 22 gives people the right not to be subject to a decision based solely on automated processing, including profiling, when it produces legal effects or similarly significant effects. Think loan approvals or CV screening. Such decisions are allowed only under specific exceptions (contract, law or explicit consent), and people must still be able to get human intervention and contest the outcome.
The Court of Justice of the EU has read this provision broadly:
- In SCHUFA (C-634/21, 7 December 2023), it held that a credit score calculated automatically can itself be an “automated decision” when a lender relies on it heavily, even though the lender formally makes the final decision.
- In Dun & Bradstreet Austria (C-203/22, 27 February 2025), it held that people have a genuine right to an explanation of the “procedure and principles actually applied”. Handing over a formula is not enough, and trade secrets do not justify a blanket refusal; any conflict is weighed by the regulator or a court.
For product teams, that means real human review of high-impact decisions and explanations people can actually understand. Regulators now enforce this with large fines: in August 2026 the Dutch authority fined Uber about €825 million over driver deactivations (our article on the Uber case).
Data subject rights in AI systems
The GDPR gives people the right to access their data (Art. 15), to rectify it (Art. 16), to have it erased (Art. 17) and to object to processing (Art. 21). These rights are easy to honour in a database and much harder in a trained model.
Once data has shaped a model’s parameters, removing one person’s information may require output filters, retraining or “machine unlearning” techniques that are still maturing. Technical difficulty does not remove the obligation. Regulators expect safeguards from the start: clean training data, output filters, clear request channels and documentation of what is feasible. The EDPB has also warned that a model developed with unlawfully processed data can affect the lawfulness of how it is later used, unless the model has been effectively anonymised.
DPIAs: required, not optional
Article 35 requires a Data Protection Impact Assessment (DPIA) when processing is likely to result in a high risk to individuals, particularly with new technologies, systematic evaluation of people or large-scale sensitive data. Most significant AI projects qualify.
A good DPIA describes the processing, tests necessity and proportionality, and records risks and mitigations. It is usually the first document a regulator asks to see. See our guide to running a DPIA before launching AI features.
GDPRChat is an AI customer chat widget built with Article 7 consent gates and automatic data deletion — compliance built into the architecture, not bolted on after a regulator starts asking questions.
How the GDPR and the AI Act fit together
The AI Act (Regulation (EU) 2024/1689) adds to the GDPR rather than replacing it, and it states explicitly that it does not affect EU data protection law. The GDPR protects personal data. The AI Act regulates the risks of AI systems themselves.
The AI Act’s timeline matters:
- 1 August 2024: entry into force.
- 2 February 2025: bans on prohibited practices and the AI literacy obligation apply.
- 2 August 2025: obligations for providers of general-purpose AI models apply.
- 2 August 2026: general application date, including most transparency obligations. Machine-readable marking of AI-generated content (Art. 50(2)) has a grace period until 2 December 2026 for generative systems already on the market.
In 2026 the EU adjusted this schedule. The Digital Omnibus on AI, Regulation (EU) 2026/1744, was published on 24 July and entered into force on 27 July 2026. It postponed high-risk obligations to 2 December 2027 for stand-alone systems (for example in recruitment, credit scoring or education) and to 2 August 2028 for AI embedded in regulated products. It also added a ban on AI that generates non-consensual intimate content or child sexual abuse material, applying from 2 December 2026, and softened AI literacy: companies must take measures to support their staff’s AI literacy, but no longer guarantee a specific level. See our 2026 to 2028 compliance calendar.
A separate part of the Digital Omnibus package, published by the Commission in November 2025, proposes amendments to the GDPR itself, including clarifying when legitimate interest can be used for AI development. As of early October 2026, that proposal is not law. The Council and the European Parliament are still negotiating it. For now, the GDPR applies in full.
Enforcement: what the cases teach us
- Clearview AI. The facial recognition firm scraped billions of photos from the internet. France’s CNIL fined it €20 million in October 2022. The Dutch AP fined it €30.5 million in September 2024, plus up to €5.1 million in penalties for non-compliance, and warned that Dutch organisations using Clearview could be fined too. In the UK, the Upper Tribunal ruled in October 2025 that the ICO had jurisdiction over the case and sent it back to a lower tribunal to decide the substance.
- OpenAI (Italy). In December 2024 the Italian Garante announced a €15 million fine over ChatGPT, citing among other things the lack of a valid legal basis for training and inadequate transparency. On 18 March 2026, the Court of Rome annulled the decision. It did not rule on the alleged violations. Instead, it found that the Garante lacked competence because OpenAI’s Irish establishment made the Irish DPC the lead authority under the GDPR’s “one-stop-shop” mechanism.
The takeaway: the substantive risks are real, but procedure, including which authority leads a case, can be just as decisive.
Practical checklist for companies using or building AI
- Map your data: know which personal data enters training, prompts and outputs.
- Choose and document a legal basis for each purpose. If it is legitimate interest, record the three-step test.
- Screen for special categories (Art. 9) and remove them where possible.
- Minimise: filter datasets, pseudonymise and set retention periods.
- Update privacy notices so they explain AI use in plain language, including to people whose data was collected indirectly.
- Run a DPIA before launch, and review it when the model or use case changes.
- Add human review to decisions with legal or significant effects, and prepare clear explanations.
- Set up a workflow for rights requests (access, rectification, erasure, objection) that covers models and outputs.
- Vet vendors: ask how their models were trained, and sign data processing agreements.
- Classify your systems under the AI Act and plan against the current deadlines, including December 2027 for stand-alone high-risk systems.
- Support AI literacy. Train your team and keep a record; the AI Act has required measures to promote it since February 2025.
A note for Brazilian readers
The GDPR has extraterritorial reach. Under Article 3(2), it applies to companies outside the EU that offer goods or services to people in the EU or monitor their behaviour. Brazil’s LGPD (Law 13.709/2018) follows a similar logic. Its Article 20 also gives people the right to request a review of decisions made solely on the basis of automated processing. In July 2024, the ANPD ordered Meta to suspend the use of personal data to train generative AI in Brazil, under threat of a daily fine of R$50,000.
Conclusion
The GDPR does not prohibit AI. It requires AI to be built with care. The companies that do well will treat data protection as part of product design rather than a last-minute legal check: a clear legal basis, clean data, transparency, human oversight and good documentation. The AI Act will add requirements, and some rules may yet be simplified, but the GDPR’s core principles are here to stay. Getting them right is the surest way to build AI that customers trust.
Book a free consultation with GDPRGard → and we will help you map your AI data flows.
Sources
- GDPR, Regulation (EU) 2016/679, EUR-Lex
- EDPB, Opinion 28/2024 on data protection aspects of AI models (17 Dec 2024)
- AI Act, Regulation (EU) 2024/1689, EUR-Lex
- European Parliament, Legislative Train: Digital Omnibus on AI
- CJEU, Case C-634/21, SCHUFA Holding (Scoring), 7 Dec 2023
- CJEU, Case C-203/22, Dun & Bradstreet Austria, 27 Feb 2025 (press release)
- Autoriteit Persoonsgegevens, fine on Clearview AI (3 Sep 2024)
- UK Upper Tribunal, ICO v Clearview AI Inc [2025] UKUT 319 (AAC)
- CNIL, 20 million euros penalty against Clearview AI
- Reuters, Italian court scraps 15-million-euro fine on OpenAI (19 Mar 2026)
- ICTLC, The OpenAI Case: Rome Court Sets Aside the Garante’s Decision
- Data Protection Commission (Ireland), statement on Meta AI (21 May 2025)
- Taylor Wessing, Meta may continue to train AI with user data (Cologne, 23 May 2025)
- ANPD, Despacho Decisório nº 20/2024/PR/ANPD (Meta)
- Brazil, LGPD, Law No. 13.709/2018
Also read:
- Forget the AI Act — GDPR is already fining companies for AI mistakes
- The "It Was Public" Excuse Is Over: GDPR Now Formally Covers AI Training Data
- The high-risk deadline moved to December 2027. The GDPR overlap didn't move at all.