Liability régime, AI Regulation, artificial intelligence, AI, AI Liability Directive
With the AI Liability Directive, the EU Commission wants to create new liability rules for artificial intelligence (AI) and supplement the planned AI Regulation. We have a leaked version of the planned directive, which EURACTIV and the Tagesspiegel also reported on. Officially, the proposed directive is not scheduled to be published until 28 September 2022 . We would like to introduce you in advance to the content and implications of the AI Liability Directive for businesses and provide you tips on how to avoid legal risks.
What is the goal of the AI Liability Directive?
The AI Liability Directive serves to adapt existing liability rules to the digital age and to developments in the field of AI. In the case of digital products, it is not clear to what extent they are subject to the liability régime of the Product Liability Directive. In addition, the Product Liability Directive only provides for compensation for physical or material damage. However, networking and new technologies mean that data and privacy can also be damaged by insecure products. In addition, the complexity of digital products makes it difficult for injured parties to identify the producer responsible.
The draft at a glance
The draft AI Liability Directive provides for the harmonisation of national non-contractual liability regimes for damages caused by AI. Anyone who suffers damage as a result of AI should be able to make a claim just as easily as with respect to damage that occurred without the involvement of AI. Pursuant to Article 1(2) of the AI Liability Directive, the disclosure requirements for high-risk AI systems under the AI Regulation and the burden of proof for non-contractual fault-based damage compensation claims are therefore to be harmonised. This is expressly without prejudice to European liability regulations for the transport industry.
Disclosure requirements
In accordance with Article 3(1) of the AI Liability Directive, member states should ensure that injured parties can demand disclosure of information from the operator, manufacturer or user of high-risk AI systems. Corresponding claims also exist against distributors or other third parties who are obliged by the AI Regulation. A request can be made for training and validation data, information from technical documentation and recording requirements, and information from the quality management system and about corrective actions taken. The information may only be surrendered to the extent necessary and appropriate to pursue the claim. If the request is unlawfully denied, the presumption that the requested information would have substantiated the claim takes effect. For enforcement and control, member states must establish appropriate judicial powers.
Reversal of burden of proof
To make it easier for injured parties to assert claims against companies, the AI Liability Directive provides for a shift in the burden of proof under the following conditions:
- The aggrieved party has set forth specific violations of the AI Ordinance by the company; and
- the duty which the company has breached is intended precisely to protect against the damage which has occurred; and
- in accordance with national law, a breach of a duty to exercise due diligence has been determined to be the fault of the company; and
- there is a causal link between the infringement and the damage incurred.
If the reversal of the burden of proof applies, the company must prove that it is not responsible for the damage incurred.
Summary
The draft AI Liability Directive is still at an early stage. However, it is already clear that the procedural consequences of a directive in this form would be serious. In addition to a loss of intellectual property due to excessive disclosure requirements, companies will be put on the defensive from the outset by the reversal of the burden of proof. Although it may be some time before the AI Liability Directive is adopted and transposed into national law, companies that use AI or intend to do so in the future should already take measures to reduce liability and meet their product responsibility. For more information, see our free reuschlaw Whitepaper on updating requirements arising from product responsibility based on civil and public law.
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