Generative AI has catapulted into the legal debate through the popular applications ChatGPT, Bard, Dall-E, and others. While the predominant focus has hitherto centred on issues of copyright infringement and regulatory strategies, particularly within the ambit of the AI Act, it is imperative to acknowledge that generative AI also engenders substantial tension with data protection laws. The example of generative AI puts a finger on the sore spot of the contentious relationship between data protection law and machine learning built on the unresolved conflict between the protection of individuals, rooted in fundamental data protection rights and the massive amounts of data required for machine learning, which renders data processing nearly universal. In the case of LLMs, which scrape nearly the whole internet, this training inevitably relies on and possibly even creates personal data under the GDPR. This tension manifests across multiple dimensions, encompassing data subjects’ rights, the foundational principles of data protection, and the fundamental categories of data protection. Drawing on ongoing investigations by data protection authorities in Europe, this paper undertakes a comprehensive analysis of the intricate interplay between generative AI and data protection within the European legal framework.

Separation of powers arguments may play a role in antitrust. The opposite is also true, as antitrust may influence the separation of powers envisaged in a broad – political and economic – perspective. Indeed, the concentration of power by a few companies of the digital economy reveals data, platform and politico-economic powers, which may lead to a rethinking of our understanding of separation of powers and let us question the role of antitrust de lege lata in this regard. One of the difficult tasks posed by antitrust typically consists of defining the relevant markets, often a key element of antitrust analysis and enforcement. Once the markets are defined, data access, portability, sharing, and interoperability, as well as the interdiction of abusive discrimination, raise fundamental issues from a politico-economic perspective of or on the separation of powers principles and antitrust. Discrimination by a dominant firm may trigger the application of antitrust or competition laws. Ultimately, antitrust may contribute to deconcentrate data or platform power and support some form of separation of powers from a politico-economic perspective.