The EU is ramping up strict and tort product liability for faulty AI and software. The current revision of the Product Liability Directive 85/374/EEC includes AI, software, and even digital services in the IoT space in the scope of “products” that fall under strict product liability. The revision expands the scope of potentially liable parties to include certain fulfillment service providers and online marketplaces. The revised Product Liability Directive will allow consumers to seek compensation from non-EU manufacturers’ representatives. Alarmingly, the draft removes the liability cap for strict liability that currently applies. The revision includes some procedural changes: It introduces a form of discovery, whereby liable companies will be required to disclose evidence that a claimant will need to prove their case in court. Furthermore, there is a shift in the burden of proof where the claimant may, due to high technical and scientific complexity, only be required to demonstrate a likelihood that the damage was caused by the product. The parallel draft of an AI Liability Directive aims at applying the same standards (in particular the shift in the burden of proof) to product liability under national tort laws.
This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.