Is ChatGPT GDPR-compliant? What OpenAI's contracts cover

Is ChatGPT GDPR-compliant?

Whether ChatGPT complies with data protection law in business use depends on the tier. For the personal tiers Free, Plus and Pro, there is no data processing agreement, the contract that binds OpenAI as a service provider. The business tiers (Team, Enterprise, API) have one, but it excludes sensitive data such as health data. For lawyers and doctors it falls short, according to the Zurich law firm VISCHER (July 2026).

In brief

• Check first whether employees use ChatGPT with a personal account (Free, Plus, Pro) for work. For these accounts, no data protection contract exists to justify that.
• Switching to a business tier (Team, Enterprise, API?APIA programming interface through which software addresses a language model directly, without a chat interface. Usually billed per token.) is sufficient for ordinary business data. For special category personal data?Personal dataAny information relating to an identified or identifiable person, so customer records, HR files or even an email address. As soon as such data is involved, the revFADP applies., for example health, religious or trade-union data, you additionally need a deliberate risk decision.
• For anyone handling client-mandate, patient or official records, VISCHER finds the direct OpenAI contract insufficient (as of July 2026). Two routes remain. The first is a contract with a hyperscaler, a large cloud provider such as Microsoft, through Azure OpenAI, meaning the same GPT models in Microsoft’s cloud. The second is an open model that you or a host operate.
• OpenAI offers no Swiss data residency, meaning no commitment to keep data in Switzerland. There is only the collective region Europe. Anyone required to keep data in Switzerland therefore cannot choose OpenAI.
• If you use Codex, OpenAI’s coding agent, check the training setting separately. Codex runs under the same contracts as ChatGPT but has its own switch that releases entire working environments for training (as of July 2026).

The Zurich law firm VISCHER (authors Lucian Hunger and Jonas Baeriswyl) regularly updates a public market overview of AI providers; the July 2026 edition gives OpenAI its own section. Souverana is not a law firm. We reproduce VISCHER’s legal assessment and add the architecture questions a legal review naturally does not answer: through which contract, and on which infrastructure, can a company still deploy OpenAI’s GPT models?

This article opens our series “Provider Data-Protection Check”, in which we review the major AI providers against the same grid: contracts, data residency, professional secrecy?Professional and official secrecyThe criminally protected duty of confidentiality of authorities (official secrecy, Art. 320 of the Swiss Criminal Code) and a list of professions named in the law (Art. 321), such as lawyers, doctors and pharmacists. It applies independently of data protection law and reaches further. Banking secrecy sits separately in the Banking Act., routes around the gaps.

What VISCHER criticises in OpenAI’s contracts

As with any provider, a basic rule applies first. Only the business tiers count for business use. VISCHER states explicitly that the consumer-facing offerings are not built and not suitable for business use, at OpenAI as at any other provider.

On the business tiers, where a DPA?Data Processing Agreement (DPA)The contract that governs how a provider may process personal data on a customer's behalf. Without a signed DPA, a cloud provider is not considered bound under data protection law. exists at all, VISCHER names three concrete reservations.

First, the contract applies only to ordinary personal data. It does not cover special category personal data, such as health data. VISCHER’s assessment on this is blunt: the clause is an attempt by OpenAI to shed responsibility for a correspondingly higher data security standard. Most customers do not notice, and the firm considers it questionable whether the clause even holds up under data protection law.

Second, a clause governs how OpenAI informs customers about new sub-processors?ProcessorA service provider that processes personal data on behalf of, and under the instructions of, the controller, such as a cloud or AI provider. Art. 9 of the revFADP ties the handover to conditions., that is, service providers OpenAI engages to process customer data. OpenAI is free to choose the notification channel: a blog post, an in-app notice, another “appropriate” form, or email, but only for those who have subscribed. A customer cannot rely on email alone. Anyone who wants to be reliably informed would have to monitor every channel continuously, blogs included. VISCHER names the risk directly: new sub-processors can be added without the customer’s knowledge, so the customer cannot actually exercise their own duty to review.

Third, on web search: according to VISCHER, the public contract texts contain no exception, which is why the firm assumes the same rules apply as in chat. A competitor claimed to VISCHER that OpenAI uses the same Bing search as Microsoft for web search. If that were true, OpenAI could not keep its own DPA commitment. It permits data flow only through declared sub-processors. Microsoft, however, does not offer Bing search under a data processing arrangement. VISCHER cannot verify this but considers it reasonable for a supervisory authority to ask OpenAI about it.

When VISCHER itself asked OpenAI how ChatGPT could be used in a way that respects professional secrecy, it reports receiving only unusable answers from an AI chatbot. Its impression: OpenAI shows no interest in a solution that would satisfy customers.

Codex: the same business terms, its own switch

VISCHER’s overview does not separately cover Codex, OpenAI’s coding agent for terminal and development environment. What follows is our own research into OpenAI’s public data protection disclosures, as of July 2026, not VISCHER’s assessment.

Contractually, the same applies to Codex as to ChatGPT. Anyone using Codex through ChatGPT Business, Enterprise or the API is subject to the same business terms and the same DPA criticised in the previous section, including the same gap for special category personal data. There is no separate Codex DPA or separate Codex terms of use.

Two details are Codex-specific and easy to miss. First, OpenAI stores API inputs and outputs for up to 30 days by default for abuse detection, even with training disabled; zero data retention, meaning no storage, is available only for eligible endpoints, on request through sales, and not automatically for every Enterprise account. Second, Codex has its own separate setting in the interface for whether entire working environments are released for training, a considerably larger release than individual requests. It is independent of the general organisation-level switch and belongs on the checklist for every Codex rollout.OpenAI Help CenterOpenAI Help Center · 2026Using Codex with your ChatGPT planOpen source ↗

Professional secrecy: why OpenAI falls short

For law firms, medical practices, trustees and banks, the question of professional secrecy↗Law & Regulation · Part 3Professional secrecy and AI: what may go to the cloud'That does not work for us' is often the answer to AI in law firms and medical practices. The criminal-law article on professional secrecy (Art. 321 of the Swiss Criminal Code) is drawn more narrowly, and most of daily work falls outside it entirely.Read article is often more pressing than general GDPR or revFADP?revFADP (revDSG)Switzerland's revised Federal Act on Data Protection, in force since 1 September 2023. It governs how companies may process personal data, and applies to AI use exactly as it does to any other processing. compliance. On OpenAI, VISCHER’s answer is short.

Unlike Microsoft or Google, OpenAI, as of July 2026, has no known contractual add-on and no workaround that changes this. Anyone processing client-mandate or patient data therefore needs a different route than the direct OpenAI contract; more on that below.

EU data residency: closer than the US, but not Switzerland

One feature deserves its own attention, because at first glance it promises more than it delivers: EU data residency, that is, the commitment to keep data in a chosen region. OpenAI processes data for the API and for ChatGPT Enterprise, Edu and Healthcare in a chosen region on request, with zero data retention on eligible API endpoints.OpenAI Help CenterOpenAI Help Center · January 2026Data residency and inference residency for ChatGPTOpen source ↗

Key figure

9 countries

Source: OpenAI Help Center, Data residency and inference residency, January 2026

Two limitations remain. The choice of region applies only to newly created projects and not retroactively, and for the API it must be made for each project individually. Moreover, “Europe” is a collective region and says nothing about a Swiss location. Anyone who must demonstrate a Swiss location is more likely to find it with a provider that actually names a Swiss location, or by self-operating an open model.

Where ChatGPT stands on the sovereignty scale

How sovereign ChatGPT is for your company is decided by six questions, each answerable independently of the others. Here is where OpenAI’s offering stands today on each one:

less sovereign more sovereign →

Jurisdiction

US (standard contract)

EU region, optional for new projects

Switzerland: no dedicated option

Model

GPT-5 class, closed

gpt-oss, open weights, Apache 2.0

no model with open training data

Software

ChatGPT app, closed

API, de facto standard, openly replicated

gpt-oss via your own inference software

Operation

OpenAI's own cloud

Azure OpenAI Service, hyperscaler contract

gpt-oss in your own or a Swiss data centre

Data

Free/Plus/Pro: no DPA

Business tiers: DPA excluding special category data

technically impossible only when self-hosting gpt-oss

Integration

proprietary ChatGPT interface

OpenAI API, widely adopted format

open in-house inference

The picture shows why “ChatGPT, yes or no” is the wrong question. The highlighted point marks, on each axis, where OpenAI’s standard hosted offering (the business tiers) sits: on the first level for five axes, on the second for data. Only all six axes together show how sovereign a given setup actually is. Two escape routes move individual axes to a higher level: self-hosted gpt-oss and Azure OpenAI Service, both described further below. (We explain the full framework behind the six axes in our foundational article, What is sovereign AI?.)

One example is the operation axis. With ChatGPT, OpenAI operates the models in its own cloud. Through Azure OpenAI Service, the same GPT models run under Microsoft’s contract terms, as is usual with hyperscalers. That is a different legal starting point from OpenAI’s own terms of service; we place it in this series’ article on Microsoft Copilot.

On the model axis, OpenAI is not uniformly closed. With gpt-oss-120b and gpt-oss-20b, the company released two models under the open Apache 2.0?Apache 2.0 licenceA free software licence. It permits use, modification and commercial use without requiring you to publish your own code. licence in August 2025. They can be downloaded, self-operated and retrained with your own data.OpenAIOpenAI · August 2025Introducing gpt-ossOpen source ↗ As a hosted business tier, though, OpenAI does not offer them, more on that in the next section.

The escape route: gpt-oss

For tasks the smaller gpt-oss models can handle, self-hosting is a genuine sovereignty gain↗Local Inference · Part 1Self-hosting an LLM: GPT-5 performance for CHF 8’500A machine with two graphics cards (RTX 4090), around CHF 8’500, three weeks of measurements. Which tasks a machine of your own handles, which it does not, and where the limit sits.Read article. Your contract partner is then a host such as Infomaniak, OVHcloud or PHOENIQS. The contract covers exactly what your company negotiates with that host, independent of OpenAI’s own business terms.

Anyone needing the full GPT-5 class finds the second route at the hyperscaler: Azure OpenAI Service offers the same models under Microsoft’s contract terms, with its own conditions for professional secrecy and abuse monitoring (misuse detection). For a company with data of differing protection levels, it is often pragmatic to choose the suitable route for each task.

Where to start

Before your next ChatGPT contract or the next renewal, clarify four points:

1. Is a personal tier (Free, Plus, Pro) running in business use at your company, even though no DPA exists for it?
2. Do you process special category personal data or even professional-secrecy data through ChatGPT, for which the business contract, according to VISCHER, is not sufficient?
3. Does the location of your data matter, and is the collective region Europe enough, or must you demonstrate a more precise location?
4. Would a hyperscaler contract through Azure OpenAI or a self-hosted gpt-oss be the better fit for the application in question than OpenAI’s own business terms?

Against the same grid, the series also reviews Anthropic, Google, Microsoft, and Proton, a provider that does it differently.

Does ChatGPT run in business use at your company? Then the tier is worth checking.

The tier decides whether a data protection contract exists at all. Free, Plus and Pro have none. The personal tiers are not built for business use, and OpenAI trains on the tasks of Codex, its coding agent, by default through Plus and Pro.

Team, Enterprise and the API come with a data processing agreement, the contract that binds OpenAI as a service provider. It does not cover special category personal data such as health data. For professional and official secrecy, OpenAI is not an option today, according to the Zurich law firm VISCHER, and there is no Swiss data residency, only the collective region Europe.

Our conclusion: the route to the models is what matters, meaning through whom and under which contract you obtain them. The same GPT models run through Azure OpenAI, Microsoft's cloud, under Microsoft's contract terms. For suitable tasks, gpt-oss is available, an open OpenAI model under Apache 2.0, for self-hosting at a Swiss host. Then the contract is with your host.

Analysis, not legal advice. The article compares the four routes to the same models, the Codex details, and seven questions for the next contract. Link in the comments.

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