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Recital 16

Distortion of Human Behaviour

AI-enabled manipulative techniques can be used to persuade persons to engage in unwanted behaviours, or to deceive them by nudging them into decisions in a way that subverts and impairs their autonomy, decision-making and free choices. The placing on the market, putting into service or use of certain AI systems materially distorting human behaviour, whereby physical or psychological harms are likely to occur, are particularly dangerous and should therefore be forbidden. Such AI systems deploy subliminal components such as audio, image, video stimuli that persons cannot perceive as those stimuli are beyond human perception or other subliminal techniques that subvert or impair person’s autonomy, decision-making or free choices in ways that people are not consciously aware of, or even if aware not able to control or resist, for example in cases of machine-brain interfaces or virtual reality. In addition, AI systems may also otherwise exploit vulnerabilities of a specific group of persons due to their age, disability within the meaning of Directive (EU) 2019/882, or a specific social or economic situation that is likely to make those persons more vulnerable to exploitation such as persons living in extreme poverty, ethnic or religious minorities. Such AI systems can be placed on the market, put into service or used with the objective to or the effect of materially distorting the behaviour of a person and in a manner that causes or is reasonably likely to cause physical or phycological harm to that or another person or groups of persons, including harms that may be accumulated over time. The intention to distort the behaviour may not be presumed if the distortion results from factors external to the AI system which are outside of the control of the provider or the user, meaning factors that may not be reasonably foreseen and mitigated by the provider or the user of the AI system. In any case, it is not necessary for the provider or the user to have the intention to cause the physical or psychological harm, as long as such harm results from the manipulative or exploitative AI-enabled practices. The prohibitions for such AI practices are complementary to the provisions contained in Directive 2005/29/EC, notably that unfair commercial practices leading to economic or financial harms to consumers are prohibited under all circumstances, irrespective of whether they are put in place through AI systems or otherwise. The prohibitions of manipulative and exploitative practices in this Regulation should not affect lawful practices in the context of medical treatment such as psychological treatment of a mental disease or physical rehabilitation, when those practices are carried out in accordance with the applicable medical standards and legislation. In addition, common and legitimate commercial practices that are in compliance with the applicable law should not in themselves be regarded as constituting harmful manipulative AI practices.

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