AI and Law I - Lecture 11: European (proposal for) a revised Product Liability Directive and for an AI Liability Directive

Please also view the Lecture 1 Course for links to all the other lectures. Note: This lecture was (also) used to finish the content of Lecture 9. The cards for that have been moved to Lecture 9.

18 flashcards · Law · by daniel-eder

1. What is new in the new product liability directive (PLD)?

   AI systems will be considered as products liability for software providers and providers of digital services liability for changes to existing products burden of proof in complex cases

2. What AI-related fact must be taken into account when considering if a product is defective due to not providing the expected safety?

   the ability to learn after deployment

3. Who will be liable under the new product liability directive?

   Before: Manufacturer Importer Now also: Authorized representative of the manufacturer Fulfillment service provider (Distributor of the Product)

4. What is a manufactorer in the new PLD?

   not only who creates the product, but also who substantially modifies it

5. When are distributors liable under the new PLD?

   If the manufacturer cannot be identified or is established outside the Union -> that includes providers of an online platform that allows consumers to conclude distance contracts with traders

6. What is a fulfilment service provider?

   offering at least two of the following services: warehousing packaging addressing dispatching of a product exception: postal services

7. Default Burden of Proof in the new PLD?

   Generally claimant must prove the: defectiveness of the product the damage suffered and the causal link between defectiveness and damaeg

8. Presumption of defectiveness in the new PLD?

   defectiveness presumed if one of: defendant failed to comply with evidence disclosure requirements claimant establishes that the product does not comply with mandatory safety requirements claimant establishes that the damage was caused by an obvious malfunction

9. Presumption of causal link in the new PLD?

   A causal link between defectiveness of the product and the damage shall be presumed if the damage caused is consistent with the defect

10. New PLD: What is the exception to the burden of proof (by default with the claimant)? or in other words: What happens if the claimant faces excessive difficulties (due to technical or scientific complexity) to prove the defectiveness / the causal link / both?

    the defectiveness / causal link / both shall be presumed when the claimant demonstrates that the product contributed to the damage and that it is likely the product was defective, or that its defectiveness is a likely cause of the damage, or both

11. New liability exception for person that modifies a product in the new PLD?

    if the person proves that: the damage is related to a part of the product that is not affected by the modification -> original manufacturer is liable

12. New liability exception for the manufacturer of a defective component in the new PLD?

    if the component manufacturer proves that: the defectiveness of the product is attributable to the design of the product in which the component has been integrated or to the instructions given by the manufacturer of that product to the manufacturer of the component -> product manufacturer is liable, not component manufacturer

13. What is the scope of the AI liability Directive ?

    rules on: Disclosure of evidence on high risk AI systems burden of proof in the case of non-contractual fault-based civil law claims

14. Disclosure of evidence under the AI liability directive?

    if an AI system is suspected of having caused damage, the provider must disclose relevant evidence if not provided -> presumption that he is non-compliant with his duty of care

15. Presumption of causal link in AI liability directive?

    causal link between fault of the defendant and output of the AI system presumed where: claimant demonstrated the fault of the defendant = non-compliance with duty of care, and its reasonably likely that the fault of the defendant has influenced the output of the AI system, and claimant demonstrated the output of the AI system gave rise to the damage

16. When do the conditions for the presumption of a causal link not need to be met in a claim against a user of a high-risk AI system in the AI liability directive?

    if the claimant demonstrates that the user did not comply with the obligations to use or monitor the AI system according to the instructions or stop its use exposed the AI system to input data which is not relevant to the purpose of the system

17. When do the conditions for the presumption of a causal link not need to be met in a claim against a provider of a high-risk AI system in the AI liability directive?

    -> generally if the claimant demonstrates that the provider failed to comply with specific requirements AI was not developed on the basis of training, validation and testing data sets according to Art 10 (2)-(4) AIA AI was not designed and developed in a way that meets transparency requirements of Art 14 AIA AI was not designed and developed with appropriate levels of accuracy, robustness and cybersecurity according to Art 15, 16 AIA AI was not immediately brought in conformity or withdrawn acc…

18. What are the exceptions to the presumption of causal link of the AI liability directive / when is the presumption not applied?

    for a high risk AI system if the defendant demonstrates that sufficient evidence and expertise is reasonable accessible for the claimant to prove the causal link for a non-high-risk AI system the presumption applies only if it is excessively difficult for the claimant to prove the causal link for a claim against personal/non-professional use the presumption applies only if the defendant materially interfered with the conditions of the operation of the system or was required and able to determin…