On September 19, 2024, the European Parliamentary Research Service (EPRS) published a proposal for a directive on adapting non-contractual civil liability rules to artificial intelligence - complementary impact assessment.

The proposal highlights challenges relating to the Artificial Intelligence Liability Directive (AILD) and the revised Product Liability Directive (PLD). The proposal outlines that the PLD does not adequately cover artificial intelligence (AI)-specific risks, such as those relating to generative AI including discrimination and infringement on personality rights.

Specifically, the proposal notes the need for categories that trigger evidence disclosure obligations and rebuttable presumptions concerning fault and causality. The proposal suggests an umbrella term for high-impact AI systems to cover high-risk AI systems and additional systems covered under the EU Artificial Intelligence Act (the AI Act).

Likewise, the proposal details that the direct causation between a lack of ex-post human oversight and harmful outcomes is not always clear. Accordingly, it suggests to establish a direct presumption of causality between AI outputs and damage for non-compliance with monitoring obligations.

In addition, the proposal stipulates that the AILD does not adequately cover general-purpose AI systems under the AI Act. Therefore, the proposal recommends that generative AI systems be classified under the high-impact AI systems category to bring them under the ambit of the AILD.

The proposal further recommends that it be made clear that the AILD applies to cases of liability for discrimination, and that it be extended to apply to areas not covered by the PLD. The proposal clarifies that the AILD be expanded into a comprehensive software liability framework, noting that the AILD applies to the following areas not covered by the PLD:

• discrimination;
• personality and other fundamental rights;
• professionally used property;
• potentially pure economic loss;
• potential sustainability effects; and
• damage by consumers.

You can read the press release here and the proposal here.