Expert Group on Liability + New Techn., Dec 2019

Expert Report on Liability for Artificial Intelligence in the EU

In December 2019, the European Commission's Expert Group on Liability and New Technologies has published its report on "Liability for Artificial Intelligence". The Report of over 60 pages offers thorough assessment of existing liability regimes in the wake of emerging digital technologies the specific characteristics of new technologies and their applications not only can make it more difficult for victims to claim compensation, but also reveal  that certain allocations of liability are unfair or inefficient. Therefore, the Report suggests suitable adjustments the to EU and the national liability regimes.

Design of Liability Regimes

The key findings of this Report on how liability regimes should be designed – and, where necessary, changed – in order to rise to the challenges emerging digital technologies bring with them, include (bullet points quoted from the Report's Executive Summary):

  • Operating Permissable Technology: 
    A person operating a permissible technology that nevertheless carries an increased risk of harm to others, for example AI-driven robots in public spaces, should be subject to strict liability for damage resulting from its operation.

  • Service Provider's Amount of Control:
    In situations where a service provider ensuring the necessary technical framework has a higher degree of control than the owner or user of an actual product or service equipped with AI, this should be taken into account in determining who primarily operates the technology.

  • User's Duties:
    A person using a technology that does not pose an increased risk of harm to others should still be required to abide by duties to properly select, operate, monitor and maintain the technology in use and – failing that – should be liable for breach of such duties if at fault.

  • Use of Low Autonomy Technology:
    A person using a technology which has a certain degree of autonomy should not be less accountable for ensuing harm than if said harm had been caused by a human auxiliary.

  • Manufacturer's Responsibility:
    Manufacturers of products or digital content incorporating emerging digital technology should be liable for damage caused by defects in their products, even if the defect was caused by changes made to the product under the producer’s control after it had been placed on the market.

  • Compulsory Liability Insurance:
    For situations exposing third parties to an increased risk of harm, compulsory liability insurance could give victims better access to compensation and protect potential tortfeasors against the risk of liability.

  • Necessary Facilitation of Proof:
    Where a particular technology increases the difficulties of proving the existence of an element of liability beyond what can be reasonably expected, victims should be entitled to facilitation of proof.

  • Mandatory Logging Features:
    Emerging digital technologies should come with logging features, where appropriate in the circumstances, and failure to log, or to provide reasonable access to logged data, should result in a reversal of the burden of proof in order not be to the detriment of the victim.

  • Data Destruction as Damage:
    The destruction of the victim’s data should be regarded as damage, compensable under specific conditions.

  • Legal Personality:
    It is not necessary to give devices or autonomous systems a legal personality, as the harm these may cause can and should be attributable to existing persons or bodies.

Composition of Expert Group on Liability and New Technologies

The members of the New Technologies Formation of the Expert Group on Liability and New Technologies are:

  • Ryan ABBOTT (United Kingdom/United States of America) 
  • Georg BORGES (Germany)
  • Eugenia DACORONIA (Greece)
  • Nathalie DEVILLIER (France)
  • Marlena JANKOWSKA-AUGUSTYN (Poland) 
  • Ernst KARNER (Austria)
  • Bernhard Alexander KOCH (Austria)
  • Alžběta KRAUSOVA (Czech Republic)
  • Piotr MACHNIKOWSKI (Poland)
  • Maria Lillà MONTAGNANI (Italy)
  • Marie MOTZFELDT (Denmark)
  • Finbarr MURPHY (Ireland)
  • Ugo PAGALLO (Italy)
  • Gerald SPINDLER (Germany)
  • Christiane WENDEHORST (Austria/Germany)

Institutional Observers from the Product Liability Formation

  • Cooley (UK) LLP (United Kingdom)
  • Universidad Carlos III de Madrid (Spain)

EC's New Formation of the Expert Group on Liability for New Technologies, "Liability for Artificial Intelligence", Report of December 2019

Verlag Dr. Otto Schmidt vom 24.01.2020 18:59

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