noyb: EU 'Article 88bis' would let AI firms bypass GDPR

The Irish EU Presidency has circulated Article 88bis, previously numbered 88c, a proposal that would let AI companies process personal data 'in the context of AI' without the ordinary GDPR restrictions on purpose or consent, according to a briefing published by noyb, the privacy NGO led by Max Schrems.

Schrems calls it a 'digital expropriation of Europeans.' 'Under these proposals, the profits of AI companies would trump European's fundamental right to privacy,' he says, naming OpenAI, Anthropic, Google, Meta and SpaceX among the beneficiaries of data collected across decades. 'A likely majority of EU member states are now saying that the interests of Elon Musk, Marc Zuckerberg, Google or Open AI, in making enormous profits, should take precedence over European's fundamental right to data protection.'

The briefing argues that if activities are wrapped inside an AI system, previously unlawful purposes could become lawful, listing manipulation, disinformation, generation of nude images and personal advertising without consent. It also flags a parallel move to narrow the GDPR itself by redefining 'personal data' and expanding what counts as a 'pseudonym,' potentially removing tracking IDs and IP addresses from scope.

Noyb points to its own polling as counter-evidence to the industry framing: only 7% of users want Meta to use their personal data for AI, despite 75% having heard of the plans. 'This legislative change primarily benefits the big players, those who have collected massive amounts of European's data,' Schrems says. Two AI-policy experts we track shared the write-up on the day it appeared.

Schrems frames the shift as a break with a settlement that has been in place since 1981. 'Since the 1980s, we have promised people that whilst large corporations may hold onto the data, they are only permitted to use it to a limited extent,' he says. The European Commission, in his telling, has moved toward industry interests, and the European Parliament remains divided. His stated fallback is the court system. 'If the legislator has lost all sense of proportion and direction, then the people can only turn to the courts.'