The proportionality between trade secret and privacy protection: How to strike the right balance when designing generative AI tools

Abstract

Conflict between the right to privacy and data protection and the right to protect trade secrets must be regarded as more or less inevitable. The balancing of different rights is an issue of fundamental importance in data protection and privacy. Navigating the spectrum between the protection of technological development and the protection of fundamental rights is crucial to ensure safer implementation of generative AI tools. The proportionality principle serves as a globally recognised legal instrument to resolve the existing conflicts of fundamental rights. This poses the question of whether there is a need to reevaluate the balance between the disclosure of technical aspects and privacy and data protection rights and related obligations imposed on privacy engineers when developing generative AI tools. The concept of the proportionality principle, which is composed of the test of necessity, suitability and proportionality `sensu stricto`, can address the most vital tensions or interactions between these rights (especially when supported by the application of the appropriate legal framework). Therefore, this paper contributes not only to the discussion of a balanced approach when implementing AI tools, but also presents some general considerations for the global, regional and country-specific legal regulations (including different types of regulations and modes of enforcement when taking into account some technical aspects of the AI tools) within artificial intelligence that can support achieving this aim. To this end, this paper could be of value not only for lawmakers and developers of generative AI systems, but equally for practitioners, including law firms, to navigate the complex ethical and regulatory landscape in a thoughtful and cautious way.