Responsibility for AI: proposal for a defective product liability directive – public consultation

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On 28 September 2022, the European Commission adopted two proposals aimed at regulating liability in the context of artificial intelligence. The first proposal concerns the modernisation of the current rules on the strict liability of producers for hazardous products. In the second proposal, the Commission proposed a separate directive on liability for artificial intelligence (regulating the non-contractual liability). The Foundation appreciates the activities taken by the Commission to establish a better legal framework for the liability for artificial intelligence.

The European Commission is currently conducting a public consultation on proposals to amend the Product Liability Directive. The Moje Państwo Foundation presents the following comments to the proposal.
  1. Artificial intelligence systems can function as defective and dangerous products, and therefore we consider it appropriate to include software in the definition of "a product". The proposed amendment will provide incentives for manufacturers of software to ensure a greater degree of safety of products placed on the market. However, it would be necessary to define precisely what software is (e.g. in the preamble of the proposed regulation), in particular in the context of its relationship to the definition of a computer program. The definition of a computer program appears in Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (point 7 of the preamble).
  2. From the point of view of the practice of applying the provisions, we appreciate the explanation contained in the draft directive that, for the purposes of application of liability on a risk basis, software is a product, regardless of how it is delivered or used, and therefore irrespective of whether the software is stored on the device or available through the computing cloud technology.
  3. Artificial intelligence appears in the content of the proposed regulation in recitals 12 and 34 of the preamble. The content of recital 12 refers to the Artificial Intelligence Act: (...) “The creators or manufacturers of software, including the providers of artificial intelligence systems within the meaning of [Artificial Intelligence Act], should be treated as manufacturers”. However, the project did not refer to the Artificial Intelligence Act within the scope of the term "artificial intelligence system" (recital 34). A clarification of the approach in this area should be considered.
  4. The regulation on the obligation on Member States to publish judgments closing the proceedings initiated under the proposed directive is praiseworthy (Article 15 sec. 1). The proposal for the Commission to set up a publicly available database containing the above-mentioned judgments (Article 15 sec. 2) is likewise laudable. The jurisprudence of national courts of Member States concerning the application of the provisions of the proposed directive, gathered in one place, will be an important source of information for both consumers and business. The database will also allow us to capture the scale of the EU's use of rights under the proposed regulation. For these reasons, the creation of such a database should be obligatory and not optional as envisaged in the project.