In November 2022, OpenAI released ChatGPT and it has recently become available to Apple iOS users in Jamaica. ChatGPT is arguably now the most popular generative artificial intelligence (AI) and its use in Jamaica is growing rapidly. While ChatGPT is taking the world by storm, AI is already integrated into our daily lives, in fact you may already be using AI voice assistant software such as Alexa and Siri and chat boxes that pop up as you navigate websites. Therefore, what does this mean for businesses now and what is the outlook for the future?

What are ChatGPT and Generative AI?

ChatGPT is a ‘chatbox’ that has the ability to perform a wide variety of tasks from creating marketing materials, customer service correspondence and analysing business trends. ChatGPT’s system is driven by generative AI technology, which allows it to produce seemingly new, realistic content in the form of text, images, audio or other media in response to prompts. AI is a branch of computer science concerned with building smart machines capable of performing tasks typically requiring human integration. Generative AI is a type of AI that models learn patterns and structure, and is able to generate new data that has similar characteristics.

Generative AI in the Workplace

Within the two months of its release, ChatGPT reached 100 million monthly active users, causing shock waves within workplaces worldwide because of its versatility and ‘human-like’ output. The uses of generative AI appear endless and so it is changing the way we do business. While ChatGPT and other generative AI has the potential to increase efficiency, boost productivity and reduce costs, it has several limitations that can result in undesirable outcomes if used inappropriately. Boards and management of entities must, therefore, ask themselves if and how AI will be used within their entity and what safeguards they need to put in place to balance risk with the creation of evolving technology.

Notwithstanding the opportunities for improvement generative AI provides, some caution must be applied in the use of generative AI. Generative AI systems are not grounded in truth or logic and so the output generated can be inaccurate, unreliable and inconsistent. ChatGPT’s training occurs on a dataset only to September 2021, so the content may be outdated. Given that much of the information bank that ChatGPT operates on is from the Internet, it contains a high level of bias which can be reflected in the output produced. While OpenAI has indicated that measures have been put in place to combat this, it would be difficult to fully resolve this issue. Certainly, not least of all, are the risks to confidentiality and privacy, particularly in light of the remaining sections of the Data Protection Act of Jamaica set to come into force on December 1, 2023. In fact, it was recently reported that as a result of a bug in the ChatGPT system, users were able to see the titles of other users’ conversations and payment information of 1.2 per cent of ChatGPT Plus subscribers (https://openai.com/blog/march-20-chatgpt-outage).

Areas for Consideration in an AI Use Policy

Despite the potential risks associated with using ChatGPT and the like, the potential benefits cannot be ignored or overlooked. As a result, it is crucial for entities to establish policies and procedures to govern the use of AI within the organisation and third parties, taking into account their own unique circumstances and obligations. To stay silent allows unrestricted use and exposes the business to significant risks.

When creating an AI use policy, it is important that the board of directors first decide whether its use will be prohibited or permitted. Regardless of the board’s decision on AI use within the entity, this should be made very clear as soon as possible and a policy be prepared to address the position, the risk areas and if applicable, very clearly outline how and when AI systems may be used.

If the use of generative AI is to be permitted by an entity, the first step is outlining the circumstances it may be utilised. Entities should consider their legal and ethical obligations when making this assessment and must not only consider internal use but also use by third parties. The potential bias and privacy issues associated with AI should also be at the forefront of this decision.

If entities intend to process personal data using AI systems, data protection and privacy must be a primary consideration. The entity must precisely define what personal data will be processed using AI and make this clear to data subjects in their written privacy policy. Where AI systems are being utilised for automated decision making, the entity must ensure it is in accordance with the Data Protection Act of Jamaica and any other data protection laws applicable to the data controller.

Employees who work with AI systems must be trained to do so in an effective and ethical manner and appropriate limits on its use highlighted in the policy. The policy should address fact-checking and obtaining independent sources through non-AI channels, ongoing training, monitoring and modification of the use of AI systems and the policy itself to ensure it is being used as intended and keeping up with the developments in AI.

Entities must address how the intellectual property (IP) of any content generated using AI tools is protected and who holds the right to utilise that content before using it. In parallel, employers should review and update employment and independent contractor agreements and any trade secret policies to ensure they cover third-party AI tools.

Lastly, the policy should require that AI systems used in the workplace are transparent and explainable to both employees and customers. This means that employees and customers should be able to understand how AI decisions are made and why specific outcomes are generated.

While generative AI presents significant opportunities, it has limitations and risks that entities must consider. By including a comprehensive and dynamic AI use policy as a part of its corporate governance structure, an entity can not only monitor the use of evolving technologies like AI, but ensure it is used effectively, ethically and responsibly while also managing the risk associated with its use. Technology is evolving at an ever-increasing rate and so now is the time to address the use of AI in your business and implement the appropriate measures to ensure responsible and effective use!

Joanna Marzouca is an associate in Myers, Fletcher & Gordon’s Commercial Department. She may be contacted via Joanna.Marzouca@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.