BILETA's Response to ICO’s Generative AI First Call for Evidence: The Lawful Basis for Web Scraping to Train Generative AI Models

This is a response to the UK Information Commissioner's Office's "Generative AI First Call for Evidence: The Lawful Basis for Web Scraping to Train Generative AI Models". It was submitted on behalf of BILETA (the British and Irish Law, Education and Technology Association). BILETA was formed in April 1986 to promote, develop, and communicate high-quality research and knowledge on technology law and policy to organisations, governments, professionals, students and the public.

In general, BILETA considers the UK data protection authority (ICO)'s analysis of the issues around lawful bases for processing in Generative AI (GenAI) models to be good. Indeed, the ICO endeavours to start from an understanding of how the technology works and evaluate the relevant data protection issues in a data protection fashion.
However, there are three overarching problems, notably:

(1) different types of models will rise different issues;
(2) the other lawful bases need to be considered before concluding that legitimate interest is the
only way forward;
(3) the analysis currently ignores the Data Protection and Digital Information (DPDI) Bill, which will significantly rewrite the rules more closely related to GenAI, including legitimate interest.