Modernising Liability Rules for Products and AI in the Digital Age

In September 2022, the European Commission published its proposal for a new product liability directive, and a proposal for a directive on adapting non-contractual civil liability rules to artificial intelligence.

A directive on the approximation of laws concerning liability for defective products was first adopted in the EU in 1985. Under these rules, consumers in the EU can claim compensation for damage caused by defective products. The proposed revisions to the PLD are intended to clarify that the product liability regime extends to digital technologies, including AI-enabled goods and services, and that providers of digital services and software can be held liable under such regime.

The AILD is part of a package of complementary regulatory measures, including the proposed EU Artificial Intelligence Act, which are intended to regulate the safety of AI systems placed on the EU market and harmonise rules relating to the same to ensure legal certainty in view of facilitating investment and innovation in AI. The AILD seeks to introduce certain uniform requirements in respect of non-contractual fault-based civil law claims for damages caused by an AI system, including in relation to disclosure of evidence relating to high-risk AI systems, and the burden of proof in such cases.

The tables below summarise the key measures as proposed in the PLD and AILD.  The consultation processes with respect to the PLD and AILD are currently ongoing. The next step is for the draft text of each proposal to be considered by the European Parliament and the Council of Europe.

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