Do AI inferences about people count as special category data?

Answered

An inference is personal data if it relates to an identified or identifiable person. It is likely to be special category data — and to trigger Article 9 — if you can or intend to infer that kind of information about someone, or you intend to treat them differently on the basis of the inference, even without a reasonable degree of certainty. If you intend to process special category or criminal offence data, you also need an Article 9 or 10 condition as well as an Article 6 lawful basis.

From the guidance

Primary (how) ICO: How do we ensure lawfulness in AI?

That inference is likely to be special category data, if your use of AI means you: can (or intend to) infer relevant information about an individual; or intend to treat someone differently on the basis of the inference (even if it's not with a reasonable degree of certainty).

Section: Using AI systems to make inferences

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Secondary (normative) ICO: How do we ensure lawfulness in AI?

If you intend to use AI to process special category data or data about criminal offences, then you will need to ensure you comply with the requirements of Articles 9 and 10 of the UK GDPR, as well as the DPA 2018.

Section: What about special category data and data about criminal offences?

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