Using ChatGPT in a GDPR-Compliant Way

The consumer tiers (Free, Plus, Pro and Go) are built for individuals. OpenAI provides no data processing agreement under Article 28 GDPR here, and training on your inputs is on by default — you can turn it off in the settings, but that does nothing about the missing contract.

For personal company data these tiers are therefore not viable in practice. They are fine for purely private use or for tasks with no personal reference at all (rewriting a public text, say) — but not as a tool into which staff type customer data.

In the business offerings OpenAI acts as a processor under Article 28 GDPR: ChatGPT Business (called “Team” until 29 August 2025), Enterprise, Edu and access via the API. Here OpenAI does not train on your customer data by default — for the API this has been the case since 1 March 2023.

The basis is OpenAI’s Data Processing Addendum (DPA), updated on 1 December 2025 and effective from 1 January 2026. It is a standard contract you must actively conclude yourself — it does not apply automatically. You will find it at openai.com/policies/data-processing-addendum.

That lays the contractual foundation. It alone does not yet make the use GDPR-compliant — third-country transfer, records, DPIA and legal basis come on top, which we go through one by one below.

If you want the data physically in the EU, look carefully at what each tier actually offers. Storage of data at rest in the EU has been available since February 2025 (for Enterprise and Edu, new workspaces). Inference on EU GPUs — the actual processing inside the EU — has been available since 16 January 2026, but for Enterprise, Edu and Healthcare and only via sales.

For ChatGPT Business, EU data residency is, as things stand, only assured on Enterprise/Edu — verify this bindingly before signing rather than relying on marketing claims. Via the API you can choose the EU region per project; processing then runs in-region with zero data retention, i.e. without persistent storage of the content.

The DPA is the baseline: it makes OpenAI your instruction-bound processor and governs purposes, deletion, sub-processors and your control rights. For ChatGPT Business, Enterprise, Edu and the API it is available as a standard contract (DPA) — but you must actively conclude it yourself; it does not apply the moment you click “Sign up”.

Practical mistake number one: the tier is booked, but nobody formally initiated the DPA. Without a signed DPA the Article 28 basis is missing — regardless of which tier you pay for.

OpenAI is a US provider, so your data in principle leaves the EU. This is currently secured twice over: OpenAI is certified under the EU-US Data Privacy Framework (DPF) (status active as of June 2026), and the DPA contains standard contractual clauses (SCCs) as a fallback.

That foundation is in motion, however. Before the CJEU, appeal C-703/25 P has been pending since October 2025, noyb announced a “Schrems III” on 30 June 2026, and a US Supreme Court ruling of June 2026 on the independence of the FTC undermines one of the DPF’s preconditions. A CJEU assessment is expected in late 2026 or early 2027.

In substance: the transfer is legally secured today, but that can change. Anyone wanting to avoid the risk structurally chooses EU data residency, an EU model (such as Mistral) or on-premise — then the data never leaves the EU in the first place.

Every AI-supported processing belongs in the record of processing activities (Article 30) — with purpose, data categories, recipients and deletion periods. This is not optional; it is the documentary basis the supervisory authority wants to see.

Once you process personal data systematically and on a large scale — or special categories under Article 9 are involved — a data protection impact assessment under Article 35 usually comes on top. It examines and documents the risks before deployment. Add to that a clean legal basis under Article 6 and your own privacy notices that make the AI use transparent.

The biggest real danger is not the wrong tier but uncontrolled use: staff copying customer data into their private ChatGPT account because it is quicker right now. This shadow AI escapes every control and every contract.

A clear, short usage policy answers the questions that come up in daily work: which tool is approved? Which data may go in, which never? Who is the point of contact? A policy no one reads does not help — it must be brief, concrete and paired with an approved alternative, so the detour via the private account becomes unnecessary.

Where a works council exists, using ChatGPT is regularly subject to co-determination. As soon as the system is capable of monitoring the behaviour or performance of employees — and enterprise features such as audit logs and SSO are exactly that — § 87 (1) no. 6 BetrVG applies.

The consequence is uncomfortable: an introduction without works-council involvement is invalid. A works agreement on AI is advisable, setting out purpose, permitted use and the exclusion of performance monitoring — that creates legal certainty for both sides.

Two duties from the EU AI Act run in parallel to the GDPR. Since 2 February 2025 the AI literacy duty under Article 4 applies: anyone using AI must ensure an adequate level of competence among their staff; supervision of this kicks in from 2 August 2026.

From the same date, 2 August 2026, the labelling duty under Article 50 applies: AI chatbots must disclose themselves and certain AI-generated content must be marked. Both duties are to be met independently of data protection — we have written them up in separate guides.

The obvious first step is a rule: no real names, no real addresses, no contract numbers in the prompt. In theory this substantially reduces the personal reference.

In practice the rule fails at exactly the point that makes it necessary — the human under time pressure. An employee who wants a customer email summarised quickly pastes it in, name and request and all. Voluntary pseudonymisation is better than nothing, but it is not a reliable control.

The most reliable control is not an appeal to staff but a technical layer between the user and the LLM: a GDPR gateway filters or pseudonymises personal data before it reaches the model. This is exactly what we built prAIvicy for.

The advantage of such a layer is that it does not depend on discipline. The real name is detected and replaced before the prompt leaves the building, and reinserted in the response — the employee ideally notices nothing, and the personal data never reaches the model in the first place.

Where the protection level has to be higher — special categories, professional secrets under § 203 StGB, sensitive sectors — a gateway in front of a US model is no longer enough. Then you move the processing itself: onto an EU model (such as Mistral) or an on-premise solution in-house or in a German cloud.

That way the data never leaves the EU, and the entire third-country debate falls away. The effort is higher, but for law firms, medical practices and regulated mid-sized companies it is often the only path that survives the DPIA — and these are exactly the architectures we set up.