EU AI Liability Directive

This is the Directive "adapting the rules on non-contractual civil liability to artificial intelligence" (Directive on AI Liability; COM(2022) 496 final). As a directive, the AI Liability Directive must first be transposed into national law by the individual EU member states through respective national legislative acts.

The regulatory content of the AI Liability Directive is comparatively straightforward. It only applies to non-contractual fault-based claims for damages under civil law in relation to damage caused by an AI system in accordance with the AI Regulation.

Two rather procedural provisions are provided for, as the terms "claimant" and "defendant" in the Directive already show:

Disclosure of evidence

If there is a high-risk AI system within the meaning of the AI Regulation, injured parties are to be entitled to disclosure of evidence.

The claimant must first sufficiently prove the "plausibility" of the claim. How this is to be done is not further defined in the AI Liability Directive. The disclosure claim is intended to enable a claimant to assert claims for damages more effectively in court (or to avoid court proceedings in the first place). This regulation is reminiscent of the "pretrial discovery" known from US law.

The right to disclosure raises completely new questions with regard to the interest of AI providers, for example, in keeping their trade secrets secret.

Presumption of causality

According to the draft AI Liability Directive, causality is to be presumed between the "fault" (e.g. of the AI system provider) and the defective "result of the AI system". The prerequisites for this presumption are cumulative:

a duty of care was breached, which is intended to protect against the damage and
the causality that is to be presumed probably exists ("reasonable discretion") and
there is causality between the faulty AI result and the damage that has occurred.

Depending on the type of AI system in question (e.g. high-risk AI or simple AI, see the article on the AI Regulation) and against whom the claim for damages is to be asserted, there are further or different requirements.

The exact terminology does not yet appear to be fully congruent with the terminology used in German law, so the actual implementation in German law will be interesting.

This article is part of the overview of the current changes resulting from the EU Data Strategy and the New Legislative Framework. Please note that the legislative project is currently a draft (although marked as "final"). It is therefore not yet applicable law and there may still be changes in the legislative process. However, due to the manageable "transitional periods", it is already necessary to "take a look" at the upcoming law.

Date: 2. Nov 2022