CONSUMER PROFILING IN AIR TRANSPORT AND TOURISM On 26 January 2024, the “Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (Artificial Intelligence Act) and amending certain Union legislative acts” was adopted by the European Commission. Article 5 regulates the prohibeted artificial intelligence practices; in particular, its paragraph 1(c) states that are considered as such “the placing on the market, putting into service or use of artificial intelligence systems for the evaluation or classification of natural persons or groups thereof over a certain period of time based on their social behaviour or known, inferred or predicted personal or personality characteristics, with the social score leading to (...) detrimental or unfavourable treatment of certain natural persons or whole groups thereof in social contexts that are unrelated to the contexts in which the data was originally generated or collected”. The use of automation systems based on the collection of data for the purpose of classifying or assessing the attitudes of a group or an individual is lawful; at the same time, the rule restricts the use of such information in all social contexts in which the client operates, even if unrelated to the flow of knowledge. Thus, in the case of a hotel reservation, the automatic system for determining the fee may take individual propensities into account; a lawyer agrees to pay a high fee to always have a room in the hotel near the Italian Supreme Court, since the need is the same, namely to avoid imponderable organisational difficulties that could jeopardise arriving on time for the hearing. The treatment is unlawful in a different context; thus, on holiday the same chain cannot offer the same price as in Rome when the needs are different, in places that are not comparable, due to the overall costs of services and market trends. Why should a lawyer on holiday in Gdansk have to pay three times as much as in other hotels of the same level and only a few dozen metres away, just because the chain he relies on is the usual one when he goes to Rome on business? It can be debated whether the prejudice is significant, because the amounts are small, and this is a more general issue of tourism law, which deals with sophisticated problems, but for matters of limited patrimonial relevance. However, the recent EU legislation, and thus the related proposal (note in detail) deal with the automated initiative as a whole, precisely to protect the undifferentiated and homogeneous reasons of travellers. It would be disproportionate for each of them to take procedural action, but the cited rule satisfies the overall need to ensure an orderly unfolding of economic activity. Unlike in the case of flights, unlawful profiling in the area of hotel bookings can be proven presumptively, because the fees charged for the same dates and in the same places are easily comparable and, indeed,
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