On 18 October 2021, the European Commission (the Commission) launched a public consultation on adapting the civil liability rules for the digital age, with a specific focus on challenges arising from the adoption of artificial intelligence (AI).
The consultation builds on the Commission’s inception impact assessment roadmap (IIA) on this topic and is part of the Commission’s wider effort to modernise EU regulations for the digital age.
Why the civil liabilities rules need to change
While Product Liability Directive 85/374/EEC (Directive) sets out rules aimed to ensure that injured parties are compensated for damage caused by defective products, the Commission has previously noted in a report in 2018 and the IIA that the Directive is no longer fit for the digital age. Challenges include:
- Whether and how intangible digital elements such as software can be classified as products
- The lack of clarity on who should be liable for defects after products are put into circulation
- Significant obstacles for injured parties to obtain compensation, especially given the difficulties in establishing causal links where the behaviours of AI systems are partially or wholly opaque
Who should consider responding to the consultation
The Commission’s present initiative proposes to adapt the existing framework to take account of developments linked to the move towards a circular and digital economy, especially challenges brought about by the increasing use of AI. Specifically, the Commission has stated that the purpose of the consultation is to:
- Confirm the relevance of the issues identified in the 2018 report
- Collect information on the need and possible ways to address the specific challenges arising from uses of AI systems
with the view to adapt the Directive and national liability rules.
Contributions are particularly sought from manufacturers of products with digital elements, software developers and other small and medium-sized businesses, as well as consumers and insurers.
Adoption of the initiative is currently planned for the third quarter of 2022.
The consultation closes on 10 January 2022. You can contribute to the consultation by filling in the online questionnaire.