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Product liability and AI: EU Commission asks for your opinion

Is the EU’s product liability directive, which is more than 30 years old, sufficient for modern claims? This is a question that the EU Commission is addressing to EU citizens and stakeholders in a consultation that has now been launched. There is a special focus on the use of artificial intelligence in production and services. The consultation runs until January 10, 2022. Contributions from software developers are particularly popular.

In general it goes in the Consultation on product liability the question of whether legal and administrative regulations of the EU member states on liability for defective products in the age of intelligent and AI-based products and services still offer sufficient legal certainty and consumer protection. The security of products and services depends not only on their design and production, but also on software updates, data flows and algorithms, explains the EU Commission.

One of her concerns is to check the relevance of problems that she identified in the 2018 assessment of the Product Liability Directive. Since 1985, this directive has provided a harmonized system for the reparation of damage caused to consumers by defective products. It applies to all movable and thus also to AI-supported products. However, the assessment showed that it was difficult to apply the directive to products in the digital and circular economy due to outdated concepts. It is also difficult for consumers to get redress, especially when it is necessary to prove that complex products were defective.

For the development and use of certain AI systems, the EU Commission has presented a proposal for a regulation to counter risks to security and fundamental rights. For this, the product liability guideline and the national liability regulations may have to be adapted.

In the second part of the consultation, the problems with certain types of AI that make it difficult to identify the potentially liable person, to prove their fault or to prove the fault in a product and the causal link with the damage are examined in more detail.

A problem of the Product Liability Directive, for example, was taken up at the political level at the end of 2020 when the EU Parliament discussed the liability of platform operators such as Amazon and Ebay for harmful or dangerous products. The guideline comes from a time when products were only brought to the European market by importers, wholesalers and dealers, said business lawyer Christoph Bush to c’t at the time. In the meantime, fulfillment service providers and online marketplaces have established new supply chains and should also be made responsible.

In a consultation by the EU Commission for an AI concept in 2020, a good 60 percent of the 1200 participants were in favor of the product liability directive being revised. 47 percent were in favor of reforming the national liability rules for all AI applications.


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