EU: Commission proposes AI Liability Directive to complement AI Act
The European Commission ('the Commission') announced, on 28 September 2022, that it had issued a proposal for an AI Liability Directive, also publishing a dedicated page with frequently asked questions ('FAQs'). In particular, the Commission noted that the proposed Directive seeks to introduce, for the first time, rules specific to damages caused by artificial intelligence ('AI') systems, with the aim to ensure that victims of harm caused by AI technology can access reparation, in the same manner as if they were harmed under any other circumstances. To this end, the Commission continued, the proposed Directive includes two main measures:
- a presumption of causality, which would relieve victims from having to explain in detail how the damage was caused by a certain fault or omission; and
- the access to evidence from companies or suppliers, when dealing with high-risk AI.
Notably, the Commission clarified that the proposed Directive and the Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence ('the AI Act') represent two sides of the same coin, noting that they would apply at different moments and reinforce each other. In this regard, the Commission explained that, while the AI Act aims at preventing damage, the proposed Directive lays down a safety-net for compensation in the event of damage.
Moreover, the Commission provided that the proposed Directive uses the same definitions as the AI Act, keeps the distinction between high-risk/non-high-risk AI, recognises the documentation and transparency requirements of the AI Act by making them operational for liability through the right to disclosure of information, and incentivises providers/users of AI systems to comply with their obligations under the AI Act. Specifically, the Commission specified that the Directive would apply to damage caused by AI systems, irrespective if they are high-risk or not according to AI Act.