AI development and scientific research: A way out of the GDPR's Article 9(2)?

Aligning artificial intelligence development with the EU General Data Protection Regulation is no easy feat, especially when dealing with special categories of data. There are many reasons for this, but one stands out: developers can't process special categories of data — for example, health data for health care applications — without applying one of the exceptions under Article 9(2). 

And there aren't any good possibilities here. Or are there?

Article 9(1) of the GDPR states that the processing of special categories of data is subject to a strict prohibition, unless at least one of the exceptions in Article 9(2) applies. This doesn't leave many possibilities for AI developers, but two alternatives are generally pointed out.

First is explicit consent. However, this approach requires an unequivocal and informed affirmative action from the data subject, which is impractical — if not impossible — to do at scale. The second approach applies an exception where special categories of data have been "manifestly made public by the data subject." Again, while theoretically plausible, AI developers are met with the hurdle of demonstrating that the data subject had the clear intent to make this information public. 

As the Higher Regional Court of Cologne recently stated, this is not easy to do because this exception will most likely only apply in cases where the data subject uploads special categories of data to their own public platforms, such as social media profiles and posts.

But what about Article 9(2)(j) of the GDPR, which includes an exception enabling the processing of special categories of data for the purposes of scientific research?