Artificial Intelligence Liability: Proposed EU Directive

Oct 28, 2022 Benn-Ibler Rechtsanwälte

The EU Commission has presented a draft directive to create harmonised civil liability rules on non-contractual liability for damages caused by an artificial intelligence (AI) system.

Disclosure of evidence

Anyone who asserts or wishes to assert a claim for damages based either on the output or the failure to produce an expected output by AI-enabled systems shall in future be able to demand disclosure of evidence by the AI provider in court, even before filing a claim. However, this only applies if the damage was caused by a high-risk AI system.

Establishing fault

If a defendant provider of a high-risk AI system fails to comply with a court disclosure order, it shall be presumed that the provider breached their relevant duty of care (which is a wrongful act).

Presumption of a causal link

The central provision of the Directive is Article 4(4), which specifies when a causal relationship is presumed between the wrongful act of the defendant and the result produced or not produced by the AI system. This is the case if

• a culpable breach of duty of care is proven or presumed (see above),
• the fault can reasonably be presumed to have affected the output of the AI system, and
• the claimant demonstrates that the damage was caused by an AI system’s output or failure to produce one.

This presumption of causality only applies to high-risk AI systems if their provider (manufacturer) or user violates certain provisions of the EU Artificial Intelligence Act (currently still being negotiated). The restriction for such systems is certainly justified given the (planned) strict regulatory framework for such systems.

Furthermore, the presumption does not apply if the defendant can show that the plaintiff has access to sufficient evidence and expertise on reasonable terms to demonstrate a causal link.

The presumption only applies to ‘normal’ (non-risk) AI systems where the court considers it was not excessively difficult for the claimant to prove a causal link.

Some legal facilitation applies if the defendant only used the AI system in the course of a personal, non-professional activity.

EU Commission PROPOSAL 2022/0303(COD) (3 October 2022)