DATA PROTECTION
EDPS: Opinion 42/2023 on the Proposals for two Directives on AI liability rules.
On 28 September 2022, the European Commission issued the two following Proposals (‘the Proposals’):
- Proposal for a directive of the European Parliament and of the Council on liability for defective products (‘the PLD Proposal’)
- Proposal for a Directive of the European Parliament and of the Council on adapting non-contractual civil liability rules to artificial intelligence (‘the AILD Proposal’).
The common objective of the Proposals is to adapt liability rules to the digital age, in order to ensure that victims benefit from the same standards of protection when harmed by artificial intelligence (AI) products or services, as they would if harm was caused under any other circumstances. The two Proposals are part of the package of measures to support the deployment of AI in Europe, which also comprises a legislative proposal laying down horizontal rules on AI systems (the proposed Artificial Intelligence Act). The EDPS fully supports the objective of the Proposals, namely to ensure that victims of damage caused by AI enjoy a level of protection equivalent to that enjoyed by persons claiming compensation for damage caused without the involvement of an AI system.
In this regard, the specific characteristics of AI systems, such as opacity, autonomy, complexity, continuous adaptation and lack of predictability, can create significant obstacles for individuals seeking remedy for harm resulting from the use of such systems. In this own initiative Opinion, the EDPS makes a number of specific recommendations.
Firstly, he calls on the co-legislators to ensure that individuals who have suffered damages caused by AI systems produced and/or used by EU institutions, bodies and agencies enjoy an equivalent level of protection as individuals who suffered damages caused by AI systems produced and/or used by private actors or national authorities.
Second, the procedural safeguards under Article 3 and 4 of the AILD Proposal should apply in all cases of damages caused by an AI system, irrespective of its classification as high-risk or non-high-risk. Moreover, providers and users should be explicitly required to disclose information pursuant to Article 3 of the AILD Proposal in an intelligible and generally understandable form. The EDPS also recommends that the AILD Proposal explicitly confirms that it is without prejudice to the Union data protection law, so as not to limit in any way the potential avenues of redress for individuals.
Finally, the EDPS invites co-legislators to consider whether additional measures to further alleviate the burden of proof would not be a fairer and more balanced approach to address the challenges posed by AI systems to the effectiveness of EU and national liability rules. In the same vein, he recommends that the review periods stipulated in the AILD Proposal and the PLD Proposal are shortened.
Opinion 42/2023 is available here.
- Proposal for a directive of the European Parliament and of the Council on liability for defective products (‘the PLD Proposal’)
- Proposal for a Directive of the European Parliament and of the Council on adapting non-contractual civil liability rules to artificial intelligence (‘the AILD Proposal’).
The common objective of the Proposals is to adapt liability rules to the digital age, in order to ensure that victims benefit from the same standards of protection when harmed by artificial intelligence (AI) products or services, as they would if harm was caused under any other circumstances. The two Proposals are part of the package of measures to support the deployment of AI in Europe, which also comprises a legislative proposal laying down horizontal rules on AI systems (the proposed Artificial Intelligence Act). The EDPS fully supports the objective of the Proposals, namely to ensure that victims of damage caused by AI enjoy a level of protection equivalent to that enjoyed by persons claiming compensation for damage caused without the involvement of an AI system.
In this regard, the specific characteristics of AI systems, such as opacity, autonomy, complexity, continuous adaptation and lack of predictability, can create significant obstacles for individuals seeking remedy for harm resulting from the use of such systems. In this own initiative Opinion, the EDPS makes a number of specific recommendations.
Firstly, he calls on the co-legislators to ensure that individuals who have suffered damages caused by AI systems produced and/or used by EU institutions, bodies and agencies enjoy an equivalent level of protection as individuals who suffered damages caused by AI systems produced and/or used by private actors or national authorities.
Second, the procedural safeguards under Article 3 and 4 of the AILD Proposal should apply in all cases of damages caused by an AI system, irrespective of its classification as high-risk or non-high-risk. Moreover, providers and users should be explicitly required to disclose information pursuant to Article 3 of the AILD Proposal in an intelligible and generally understandable form. The EDPS also recommends that the AILD Proposal explicitly confirms that it is without prejudice to the Union data protection law, so as not to limit in any way the potential avenues of redress for individuals.
Finally, the EDPS invites co-legislators to consider whether additional measures to further alleviate the burden of proof would not be a fairer and more balanced approach to address the challenges posed by AI systems to the effectiveness of EU and national liability rules. In the same vein, he recommends that the review periods stipulated in the AILD Proposal and the PLD Proposal are shortened.
Opinion 42/2023 is available here.
