Bookmarked AI Liability Directive (PDF) (by the European Commission)

This should be interesting to compare with the proposed AI Regulation. The AI Regulation specifies under which conditions an AI product or service, or the output of one will or won’t be admitted on the EU market (literally a CE mark for AI), based on a risk assessment that includes risks to civic rights, equipment safety and critical infrastructure. That text is still very much under negotiation, but is a building block of the combined EU digital and data strategies. The EU in parallel is modernising their product liability rules, and now include damage caused by AI related products and services within that scope. Both are listed on the EC’s page concerning AI so some integration is to be expected. Is the proposal already anticipating parts of the AI Regulation, or does it try to replicate some of it within this Directive? Is it fully aligned with the proposed AI Regulation or are there surprising contrasts? As this proposal is a Directive (which needs to be translated into national law in each Member State), and the AI Regulation becomes law without such national translation that too is a dynamic of interest, in the sense that this Directive builds on existing national legal instruments. There was a consultation on this Directive late 2021. Which DG created this proposal, DG Just?

The problems this proposal aims to address, in particular legal uncertainty and legal fragmentation, hinder the development of the internal market and thus amount to significant obstacles to cross-border trade in AI-enabled products and services.

The proposal addresses obstacles stemming from the fact that businesses that want to produce, disseminate and operate AI-enabled products and services across borders are uncertain whether and how existing liability regimes apply to damage caused by AI. … In a cross-border context, the law applicable to a non-contractual liability arising out of a tort or delict is by default the law of the country in which the damage occurs. For these businesses, it is essential to know the relevant liability risks and to be able to insure themselves against them.

In addition, there are concrete signs that a number of Member States are considering unilateral legislative measures to address the specific challenges posed by AI with respect to liability. … Given the large divergence between Member States’ existing civil liability rules, it is likely that any national AI-specific measure on liability would follow existing different national approaches and therefore increase fragmentation. Therefore, adaptations of liability rules taken on a purely national basis would increase the barriers to the rollout of AI-enabled products and services across the internal market and contribute further to fragmentation.

European Commission