Author: Maria Lillà Montagnani and Marie-Claire Najjar

Maria Lillà Montagnani is Professor of Commercial Law (teaching and researching in the field of Law and Technology) and Director of the LL.M in European Business and Social Law at Bocconi University. Marie-Claire Najjar, LL.M., is Academic Fellow (in the field of Law and Technology) and co-coordinator of the LL.M. in European Business and Social Law at Bocconi University.

A “bi-partite” AI Liability framework: Compensatory measures to enforce compliance with preventive measures

Redefining Liability

 

Current regimes and traditional notions of liability, in Europe and elsewhere, have been challenged by the emergence of Artificial Intelligence (AI) and its specific features. On one side, the combination of the features of openness, data-drivenness and vulnerability, enables the harm of further categories of protected interests – such as privacy, confidential information, cybersecurity, etc. – which in turn challenges the notion of damage. On the other side, the characteristics of autonomy, unpredictability, opacity, and complexity, impact the notions of causation and duty of care. All these features render liability assessments difficult, unless AI systems are adequately governed.

 

So far, the EU’s liability framework has only been partially harmonized. For instance, the current Product Liability Directive (Directive 85/374/EC, “PLD”), implemented into Member State law, dates back to 1984 and fails to encompass AI-related harm. Fragmentation in the EU’s existing liability regime call for its revision, to catch up with the rapid changes brought by AI. This is what the proposed framework on AI liability, which can be defined as “bi-partite”, aims to achieve.

 

The proposed AI Act, part of the Commission’s 2021 AI package – and coupled with the proposed Machinery Regulation – constitutes preventive, ex-ante measures adopting a risk-based approach to govern AI systems. Gaps in redress mechanisms under the AI Act, and doubts surrounding its surveillance authority system and AI auditing ecosystem, raise questions regarding the regulation’s enforcement. To face the scenario where a lack of compliance generates damages, the ex-ante legislation has been complemented by two proposals for compensatory, ex-post measures: the revised Product Liability Directive (“revised PLD”) and AI Liability Directive (“AILD”). We look into how the revised PLD and the AILD contribute to the enforcement of the preventive measures, by pushing for compliance with the obligations they introduce.

 

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