Now that the EU Artificial Intelligence Act (“AI Act”) has entered into force, the EU institutions are turning their attention to the proposal for a directive on adapting non-contractual civil liability rules to artificial intelligence (the so-called “AI Liability Directive”).  Although the EU Parliament and the Council informally agreed on the text of the proposal in December 2023 (see our previous blog posts here and here), the text of the proposal is expected to change based on a complementary impact assessment published by the European Parliamentary Research Service on September 19.

Brief Overview of the AI Liability Directive

The AI Liability Directive was proposed to establish harmonised rules in fault-based claims (e.g., negligence).  These were to cover the disclosure of evidence on high-risk artificial intelligence (“AI”) systems and the burden of proof including, in certain circumstances, a rebuttable presumption of causation between the fault of the defendant (i.e., the provider or deployer of an AI system) and the output produced by the AI system or the failure of the AI system to produce an output.

Potential Changes to the AI Liability Directive

In July, news reports leaked a slightly amended version of the European Commission’s AI Liability Directive proposal to align the wording with the adopted AI Act (Council document ST 12523 2024 INIT).  The amendments reflect the difference in numbering between the proposed AI Act and the enacted version.

Over the summer, the EU Parliamentary Research Service carried out a complementary impact assessment to evaluate whether the AI Liability Directive should remain on the EU’s list of priorities.  In particular, the new assessment was to determine whether the AI Liability Directive is still needed in light of the proposal for a new Product Liability Directive (see our blog post here).Continue Reading The EU Considers Changing the EU AI Liability Directive into a Software Liability Regulation