Liability for damage created by AI: towards a specific legal framework - SIMPLYSHAN.COM

Liability for damage created by AI: towards a specific legal framework

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On September 28, 2022, the Commission proposed new rules on liability, applicable to products and AI. Objective: to better protect consumers and promote innovation. In some cases, a presumption of causality will be introduced with regard to damage caused by artificial intelligence.

The culmination of a long process that began in 2017, the Commission today adopted two proposals aimed at adapting liability rules to the digital age, the circular economy and the impact of global value chains.

First of all, it proposes to modernize the existing rules concerning the strict liability of manufacturers for defective products (from smart technologies to pharmaceutical products). According to the Commission, “the revised rules will provide businesses with legal certainty to invest in new and innovative products and ensure that victims can obtain fair compensation where faulty products, including digital and refurbished products, cause harm”.

Secondly, the Commission is proposing for the first time a targeted harmonization of national rules on liability applicable to AI, in order to make it easier for victims of AI-related damage to obtain compensation. In line with the objectives of the AI ​​White Paper and the Commission’s 2021 proposal for an AI Regulation, establishing a framework for excellence and trust in AI, the new rules will ensure that victims benefit the same standards of protection when harmed by AI products or services as if harm were caused in other circumstances.

Revision of the Product Liability Directive

The Commission presents the following elements as particularly important:

modernization liability rules for circular economy business modelsso that liability rules are clear and fair for companies that substantially modify products;

modernization Product liability rules in the digital agethus enabling the repair of damages when products such as robots, drones or smart home systems are made unsafe by software updates, AI or digital services necessary for the operation of the product, as well as when manufacturers fail to address cybersecurity vulnerabilities;

creation fairer conditions of competition between EU and non-EU manufacturers: when consumers are harmed by dangerous products imported from third countries, they can contact the importer or the manufacturer’s representative in the EU to obtain compensation;

bets consumers on an equal footing with manufacturers, by requiring the latter to disclose evidence, by introducing greater flexibility regarding the time restrictions applicable to the introduction of reparations actions and by easing the burden of proof for victims in complex cases, such as than those involving pharmaceuticals or AI.

An easier remedy for AI victims

The Commission explains that the aim of the AI ​​Liability Directive is to establish uniform rules for access to information and the alleviation of the burden of proof with regard to damage caused by AI systems, to establish broader protection for victims (whether individuals or companies) and to foster the AI ​​sector by strengthening safeguards. It will harmonize certain rules for damages actions falling outside the scope of the Product Liability Directive, in cases where damage is caused by wrongful conduct. This concerns, for example, privacy breaches or damage caused by security issues. The new rules will, for example, make it easier to obtain redress if someone has been discriminated against during a recruitment process using AI technology.

The directive simplifies the legal process for victims when it comes to proving that a person’s fault caused damage, by introducing two main elements.

First of allin circumstances where relevant fault has been established and where a causal link to the performance of the AI ​​seems reasonably probable, the “ presumption of causation will address the difficulties experienced by victims when having to explain in detail how harm was caused by a particular fault or omission, which can be particularly difficult when it comes to understanding and navigating systems of Complex AIs.

Secondlyvictims will have more tools to seek redress in court, thanks to the introduction of a right of access to evidence from companies and suppliers, when high-risk AI systems are used.

Next step

The proposal will be submitted to the Council and to the Parliament.

More informations

By reading the two proposed directives as well as the questions and answers, available in the appendix;

Our analysis: Should the “Product Liability” Directive be adapted to the digital age?

Our analysis: Internet of things: manufacturers sued because of security flaws in connected objects

Our analysis: The European Parliament wants to create robot law

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