Directive on adapting non-contractual civil liability rules to artificial intelligence (Artificial Intelligence Liability Directive)
Status: In draft
- Commission’s proposal published 28 September 2022.
- EU co-legislators will not start discussion on this file until a final position is reached on the AI Act.
Summary
The AI Liability Directive introduces new rules specific to damages caused by AI systems intending to ensure that persons harmed by AI systems enjoy the same level of protection as persons harmed by other technologies in the EU. The new Directive is closely related to the AI Act published in April 2021, filling in some of the gaps regarding liability for the use of AI systems.
Scope
- New rights for users of AI systems (including consumers, businesses and government agencies) to bring claims for compensation against providers of AI systems where they allege, they have suffered damage.
Key elements
- New evidence rights for claimants.
- Presumption of breach in cases of document destruction or non-disclosure.
- Presumption of causal relationship and reversal of the burden of proof where breach is established: Presumption of causal relationship between (1) breach of a duty of care under the AI Act and/or any other EU/national law which is directly intended to protect against the damage that occurred, and (2) output of the AI system in question. Claimant is relieved of the burden of explaining how an AI system produced the result it did, where it has been shown that the defendant breached a relevant duty of care.
- Minimum harmonisation measure: Directive leaves room for Member States’ existing civil liability and procedural rules to determine other matters that are likely to be key to the success or failure of any claim.
Challenges
- New disclosure obligation will make documentation and information obligations for business that market AI-enabled products, system and service very important.
- The introduction of new information rights and of new “rebuttable presumptions” as to breach and causation have the potential to tilt the balance firmly in claimants’ favour.
- The AI Liability Directive is being complemented by the envisaged update to the EU Product Liability Regime which will incorporate software and AI.
Key Freshfields contact(s):
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Dr. Theresa Ehlen Partner
Düsseldorf, Frankfurt am Main
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Andrew Austin Partner, Head of London Dispute Resolution
London
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Dr. Christoph Werkmeister Partner
Düsseldorf
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Dr. Lutz Riede Partner
Wien, Düsseldorf