The regulation of AI liability in Europe: a critical overview of two recent directive proposals – the (new) AILD and the (revised) PLD

Abstract

One of the main legal challenges Artificial Intelligence brings is the liability towards its use. In fact, its complexity and opacity, combined with the lack of human control of the processes, gives rise to doubts and questionings regarding some key aspects of liability, such as the proof of causal link and fault. The European Union recently presented two proposals for the regulation of AI liability: a new directive, covering fault-based claims, and the revision of the Product Liability Directive, which includes the understanding of software – namely, AI-enabled ones – as products. Having in mind the challenges and difficulties AI liability demands from the law practitioners, this article critically comments both proposals, aiming to find out if the solutions proposed are adequate in terms of the regulation of AI liability in Europe.