European Commission should assess if software should be defined as “products” in an updated Product Liability Directive, says European Parliament committee

Committee on the Internal Market and Consumer Protection draft opinion issued

The Committee on the Internal Market and Consumer Protection has issued a draft opinion with various suggestions for the Committee on Legal Affairs to incorporate into its proposed motion for a resolution. 

It includes a recognition that AI plays an increasing role in everyday lives and has the potential to contribute to the development of innovations in many sectors and offer benefits for consumers through innovative products and services and, for businesses, through optimised performance.  

It also recognises that the use and development of AI applications in products might also present challenges to the existing legal framework on products and reduce their effectiveness, therefore potentially undermining consumer trust and welfare due to their specific characteristics.  Robust liability mechanisms remedying damage contribute to better protection of consumers, creation of trust in new technologies integrated in products and acceptance for innovation while ensuring legal certainty for business.  

The Commission needs to consider to what extent the existing liability framework, and in particular the Product Liability Directive 85/374/EEC, needs to be updated to guarantee effective consumer protection and legal clarity for businesses, while avoiding high costs and risks.  Any revision should aim to harmonise liability rules.  

The Commission also should assess whether definitions and concepts in the product liability framework need to be updated due to the specific characteristics of AI applications such as complexity, autonomy and opacity.  

In addition it needs to consider if it is necessary to include software in the definition of ‘products’ under the Product Liability Directive and to update concepts such as ‘producer’, ‘damage’ and ‘defect’, and if so, to what extent. It also wants the Commission to examine whether the product liability framework should be revised to protect injured parties efficiently in relation to products that are purchased as a bundle with related services.

The opinion stresses the importance of ensuring a fair liability system that makes it possible for consumers to prove that a defect in a product caused damage, even if third party software is involved or the cause of a defect is hard to trace, for example when products are part of a complex interconnected Internet of Things environment.

It further calls on the Commission to evaluate whether and to what extent the burden of proof should be reversed to empower harmed consumers while preventing abuse and providing legal clarity for businesses.

The opinion also highlights the need for a risk based approach to AI within the existing liability framework, which takes into account different levels of risk for consumers in specific sectors and uses of AI. It underlines that such an approach, that might encompass two or more levels of risk, should be based on clear criteria and provide for legal clarity.

Finally the opinion asks the Commission to carefully assess the advantages and disadvantages of introducing a strict liability model for products containing AI applications and consider it only in specific high risk areas, emphasising the need to strictly respect the proportionality principle if this approach is retained.


Published: 2020-05-22T13:00:00

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