01.11.22

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A Soup of Buzzwords From Brussels (the European Commission)

Posted in Deception, Europe, Patents at 10:55 am by Dr. Roy Schestowitz

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Say Hello to Buzzwords
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Stop Calling Everything AI, Machine-Learning Pioneer Says - IEEE SpectrumSummary: The European Commission (EC) is very much guilty of what the man on the right recently bemoaned; European officials are shaping our policies based on misconceptions and nebulous terms, brought forth by multinational corporations, their media, and their lobbyists in the Brussels area; today we focus on a new consultation which sparingly uses the buzzwords “Hey Hi” and “IoT” (in almost every paragraph, on average)

THIS morning we belatedly published this relatively short post concerning a misguided or misframed consultation, which is probably well-meant (or well-meaning) but makes inherently flawed/false assumptions about the problem at hand (liability for harm and/or defects). The above video is a very short version of what would otherwise take several hours to cover (e.g. addressing pertinent questions). It’s repeatedly noted that the questions themselves are loaded, wrong, ill-advised, and potentially unhelpful. They compel us to believe that there’s this “magic” called “AI” and that it cannot be understood, governed, and nobody can be held accountable for computerised systems anymore. It’s a form of defeatism. Inducing a sense of helplessness.

In recent years we pointed out that the gross overuse of the term “AI” (which we’ve spun as “Hey Hi” for the sake of ridicule) is being exploited by patent maximalists. They want patents to be granted to computers and for patents to also cover computer programs (algorithms) by framing those programs as “AI”. This is really bad (both things) as it defies common sense, not just patent law or its raison d’être.

An associate of ours has studied the document and more or less agrees. “I’d say it’s more likely misframed,” he adds. “By this decade, more ought to know about what general-purpose computing is about, so there is not the excuse of it being novel. Same with machine learning, where the innovation was in the 1970s and 1980s, but the computing power didn’t catch up with the theory until the last decade or so.”

If one visits the page in question right now it says: “This survey has not yet been published or has already been unpublished in the meantime.”

We’ve chosen not to comment until it’s officially over (“EU Survey – Adapting liability rules to the digital age and Artificial Intelligence”).

As it states right there in the title, it’s all about “Artificial Intelligence” — a concept which is hardly defined or ill-defined.

“The sad situation in the world nowadays is that the politicians neither know anything at all about ICT nor know anyone they can turn to who will give then an honest answer” the associate adds. “Therefore it is important that I at least go through the motions of providing the feedback they have requested from EU citizens.” The text below concerns Directive 85/374/EEC on liability for defective products (more in [1, 2] and it mentions “AI” about 100 times in total:

2000 character(s) maximum for each of the following:

Question: What do you think is the appropriate approach for consumers to
claim compensation when damage is caused by a defective product bought
through an online marketplace and there is no EU-based producer or importer?

Question: Please elaborate on your answers or specify other grounds of
legal uncertainty regarding liability for damage caused by AI:

Question: Please elaborate on your answers. You may reflect in
particular on the recently proposed AI Act and on the complementary
roles played by liability rules and the other safety-related strands of
the Commission’s AI policy in ensuring trust in AI and promoting the
uptake of AI-enabled products and services:

Question: Please elaborate on your answers, in particular on whether
your assessment is different for AI-enabled products than for AI-enabled
services

Question: Please elaborate on your answers, in particular on whether
your assessment is different for AI-enabled products than for AI-enabled
services, as well as on other impacts of possible legal fragmentation

Question: Please elaborate on your answers and describe any other
measures you may find appropriate:

Question: Please elaborate on your answer, describe any other approaches
regarding strict liability you may find appropriate and/or indicate to
which specific AI-enabled products and services strict liability should
apply:

Question: Please elaborate on your answers, also taking into account the
interplay with the other strands of the Commission’s AI policy (in
particular the proposed AI Act). Please also describe any other measures
you may find appropriate:

Question: Please elaborate on your answer and specify if you would
prefer a different approach, e.g. an approach differentiating by area of
AI application:

Question: Are there any other issues that should be considered?

-----

English EN
European Commission    EU Survey
 Save a backup on your local computer (disable if you are using a
public/shared computer)

Adapting liability rules to the digital age and Artificial Intelligence

Fields marked with * are mandatory.

Introduction

This public consultation aims to:

confirm the relevance of the issues identified by the 2018 evaluation of
the Product Liability Directive (e.g. how to apply the Directive to
products in the digital and circular economy), and gather information
and views on how to improve the Directive (Section I);

collect information on the need and possible ways to address issues
related specifically to damage caused by Artificial Intelligence
systems, which concerns both the Product Liability Directive and
national civil liability rules (Section II).

You can respond to both sections or just to Section I.  It is not
possible to respond only to Section II.

About you

* Question: Language of my contribution

* Question: I am giving my contribution as

* Question: First name

* Question: Surname

* Question: Email (this won't be published)
______

* Question: Country of origin.  Please add your country of origin, or
that of your organisation.

The Commission will publish all contributions to this public
consultation.  You can choose whether you would prefer to have your
details published or to remain anonymous when your contribution is
published.  For the purpose of transparency, the type of respondent (for
example, ‘business association, ‘consumer association’, ‘EU citizen’)
country of origin, organisation name and size, and its transparency
register number, are always published.  Your e-mail address will never
be published.  Opt in to select the privacy option that best suits you.
Privacy options default based on the type of respondent selected

* Question: I agree with the personal data protection provisions

Section I – Product Liability Directive

This section of the consultation concerns Council Directive 85/374/EEC
on liability for defective products (“Product Liability Directive”),
which applies to any product marketed in the European Economic Area (27
EU countries plus Iceland, Liechtenstein and Norway).  See also Section
II for more in-depth questions about the Directive and AI.

According to the Directive, if a defective product causes damage to
consumers, the producer must pay compensation. The injured party must
prove the product was defective, as well as the causal link between the
defect and the damage. But the injured party does not have to prove that
the producer was at fault or negligent (‘strict liability’). In certain
circumstances, producers are exempted from liability if they prove, e.g.
that the product’s defect was not discoverable based on the best
scientific knowledge at the time it was placed on the market.

Injured parties can claim compensation for death, personal injury as
well as property damage if the property is intended for private use and
the damage exceeds EUR 500. The injured party has 3 years to seek
compensation. In addition, the producer is freed from liability 10 years
after the date the product was put into circulation.

The Evaluation of the Directive in 2018 found that it was effective
overall, but difficult to apply to products in the digital and circular
economy because of its outdated concepts. The Commission’s 2020 Report
on Safety and Liability for AI, Internet of things (IoT) and robotics
also confirmed this.

The Evaluation also found that consumers faced obstacles to making
compensation claims, due to thresholds and time limits, and obstacles to
getting compensation, especially for complex products, due to the burden
of proof.

* Question: How familiar are you with the Directive?
    Answer: I have detailed knowledge of the Directive,
        its objectives, rules and application
    Answer: I am aware of the Directive and some of its contents
    Answer: I am not familiar with the Directive
    Answer: No opinion

Adapting the Directive to the digital age

Question: The Directive holds importers strictly liable for damage
caused by defective products when the producer is based outside the EU.
Nowadays online marketplaces enable consumers to buy products from
outside the EU without there being an importer.

Online marketplaces intermediate the sale of products between traders,
including those established outside the EU, and consumers. Typically,
they are not in contact with the products they intermediate and they
frequently intermediate trade between many sellers and consumers.

Under the current rules, online marketplaces are covered by a
conditional liability exemption (Article 14 of the e-Commerce
Directive). The new proposal for a Digital Services Act includes
obligations for online marketplaces to tackle illegal products online,
e.g. gathering information on the identity of traders using their
services. Moreover, the new proposal for a General Product Safety
Regulation includes provisions for online marketplaces to tackle the
sale of dangerous products online.

Do you agree or disagree with the following statements?

    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

The proposals for a Digital Services Act and General Product Safety
Regulation are sufficient to ensure consumer protection as regards
products bought through online marketplaces where there is no EU-based
producer or importer.
The Product Liability Directive needs to be adapted to ensure consumer
protection if damage is caused by defective products bought through
online marketplaces where there is no EU-based producer or importer.

Question: What do you think is the appropriate approach for consumers to
claim compensation when damage is caused by a defective product bought
through an online marketplace and there is no EU-based producer or importer?
    (2000 character(s) maximum)
    0 out of 2000 characters used.

Question: Digital technologies may bring with them new risks and new
kinds of damage.

Regarding risks, it is not always clear whether cybersecurity
vulnerabilities can be considered a defect under the Directive,
particularly as cybersecurity risks evolve throughout a product’s lifetime.

Regarding damage, the Directive harmonises the rights of consumers to
claim compensation for physical injury and property damage, although it
lets each Member State decide itself whether to compensate for
non-material damage (e.g. privacy infringements, psychological harm).
National rules on non-material damage differ widely. At EU level both
material and non-material damage can be compensated under the General
Data Protection Regulation (GDPR) when a data controller or processor
infringes the GDPR, and the Environmental Liability Directive provides
for the liability of companies for environmental damage.

Do you agree or disagree with the following statements?
    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

Producers should potentially be held strictly liable for damages caused
as a result of failure to provide necessary security updates for smart
products
The Directive should harmonise the right of consumers to claim
compensation from producers who are not simultaneously data controllers
or processors, for privacy or data protection infringements (e.g. a leak
of personal data caused by a defect)

The Directive should harmonise the right of consumers to claim
compensation for damage to, or destruction of, data (e.g. data being
wiped from a hard drive even if there is no tangible damage)
The Directive should harmonise the right of consumers to claim
compensation for psychological harm (e.g. abusive robot in a care
setting, home-schooling robot)

Some products, whether digital or not, could also cause environmental
damage. The Directive should allow consumers to claim compensation for
environmental damage (e.g. caused by chemical products)
Coverage of other types of harm

Adapting the Directive to the circular economy

Question The Directive addresses defects present at the moment a product
is placed on the market. However, changes to products after they are
placed on the market are increasingly common, e.g. in the context of
circular economy business models.

The Evaluation of the Directive found that it was not always clear who
should be strictly liable when repaired, refurbished or remanufactured
products were defective and caused damage. It is worth noting here that
the Directive concerns the defectiveness of products and not the
defectiveness of services. So, a third-party repair that was poorly
carried out would not lead to the repairer being held liable under the
Directive, although remedies may be available under national law.

Do you agree or disagree with the following statements?
    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

Companies that remanufacture a product (e.g. restoring vehicle
components to original as-new condition) and place it back on the market
should be strictly liable for defects causing damage
Companies that refurbish a product (e.g. restoring functionality of a
used smartphone) and place it back on the market should be strictly
liable for defects causing damage

The manufacturer of a defective spare part added to a product (e.g. to a
washing machine) during a repair should be strictly liable for damage
caused by that spare part

Policy approach and impacts of adapting the Directive to the digital and
circular economy

Reducing obstacles to getting compensation

Question: The Evaluation of the Directive found that in some cases
consumers face significant difficulties in getting compensation for
damage caused by defective products.

In particular it found that difficulties in proving the defectiveness of
a product and proving that the product caused the damage accounted for
53% of rejected compensation claims. In particular, the technical
complexity of certain products (e.g. pharmaceuticals and emerging
digital technologies) could make it especially difficult and costly for
consumers to actually prove they were defective and that they caused the
damage.

To what extent do you think that the following types of product present
difficulties in terms of proving defectiveness and causality in the
event of damage? (See additional burden of proof question concerning AI
in Section II)
    To a very large extent
    To a large extent
    To a moderate extent
    To a small extent
    Not at all
    Don't know/no answer

All products

Technically complex products

Pharmaceuticals

AI-enabled products

IoT (Internet of Things) products
Question: Other types of product (please specify):
    (50 character(s) maximum)
    0 out of 50 characters used.

Reducing obstacles to making claims

Question: The Evaluation of the Directive found that in some cases
consumers faced or could face significant difficulties in making
compensation claims for damage caused by defective products. The current
rules allow consumers to claim compensation for personal injury or
property damage. Time limits apply to all compensation claims and
several other limitations apply to compensation for property damage.

To what extent do the following features of the Directive create
obstacles to consumers making compensation claims?
    To a very large extent
    To a large extent
    To a moderate extent
    To a small extent
    Not at all
    Don't know/no answer

Producers are released from liability for death/personal injury 10 years
after placing the product on the market
Producers are released from liability for property damage 10 years after
placing the product on the market

Consumers have to start legal proceedings within 3 years of becoming
aware of the damage

Consumers can claim compensation only for damage to property worth more
than EUR 500

Consumers can claim compensation only for damage to property intended
and used for private purposes

Policy approach and impacts of reducing obstacles to getting
compensation and making claims

End of Section I on Product Liability Directive

*Question

In Section II of this consultation the problems linked to certain types
of Artificial Intelligence – which make it difficult to identify the
potentially liable person, to prove that person’s fault or to prove the
defect of a product and the causal link with the damage – are explored
further.

Would you like to continue with Section II on Artificial Intelligence?
    Answer
Continue with Section II on Artificial Intelligence
    Answer
Close the questionnaire

Section II - Liability for AI

Introduction

As a crucial enabling technology, AI can drive both products and
services. AI systems can either be provided with a physical product
(e.g. an autonomous delivery vehicle) or placed separately on the market.

To facilitate trust in and the roll-out of AI technologies, the
Commission is taking a staged approach. First, on 21 April 2021, it
proposed harmonised rules for development, placing on the market and use
of certain AI systems (AI Act). The AI Act contains obligations on
providers and users of AI systems, e.g. on human oversight, transparency
and information. In addition, the recent proposal for a Regulation on
Machinery Products (published together with the AI act) also covers new
risks originating from emerging technologies, including the integration
of AI systems into machinery.

However, safety legislation minimises but cannot fully exclude
accidents. The liability frameworks come into play where accidents
happen and damage is caused. Therefore, as a next step to complement the
recent initiatives aimed at improving the safety of products when they
are placed on the EU market, the Commission is considering a revision of
the liability framework.

In the White Paper on AI and the accompanying 2020 Report on Safety and
Liability, the Commission identified potential problems with liability
rules, stemming from the specific properties of certain AI systems.
These properties could make it difficult for injured parties to get
compensation based on the Product Liability Directive or national
fault-based rules. This is because in certain situations, the lack of
transparency (opacity) and explainability (complexity) as well as the
high degree of autonomy of some AI systems could make it difficult for
injured parties to prove a product is defective or to prove fault, and
to prove the causal link with the damage.

It may also be uncertain whether and to what extent national strict
liability regimes (e.g. for dangerous activities) will apply to the use
of AI-enabled products or services. National laws may change, and courts
may adapt their interpretation of the law, to address these potential
challenges. Regarding national liability rules and their application to
AI, these potential problems have been further explored in this recent
study.

With this staged approach to AI, the Commission aims to provide the
legal certainty necessary for investment and, specifically with this
initiative, to ensure that victims of damage caused by AI-enabled
products and services have a similar level of protection to victims of
technologies that operate without AI. Therefore, this part of the
consultation is looking at all three pillars of the existing liability
framework.

The Product Liability Directive, for consumer claims against producers
of defective products. The injured party has to prove the product was
defective and the causal link between that defect and the damage. As
regards the Directive, the proposed questions build on the first section
of the consultation.

National fault-based liability rules: The injured party has to prove the
defendant’s fault (negligence or intent to harm) and a causal link
between that fault and the damage.

National strict liability regimes set by each Member State for
technologies or activities considered to pose an increased risk to
society (e.g. cars or construction activities). Strict liability means
that the relevant risk is assigned to someone irrespective of fault.
This is usually justified by the fact that the strictly liable
individual benefits from exposing the public to a risk.

In addition to this framework, the General Data Protection Regulation
(GDPR) gives anyone who has suffered material or non-material damage due
to an infringement of the Regulation the right to receive compensation
from the controller or processor.

Problems – general

Question: Do you agree or disagree with the following statements?
    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

There is uncertainty as to how the Product Liability Directive (i.e.
liability for defective products) applies to damage caused by AI
There is uncertainty as to whether and how liability rules under
national law apply to damage caused by AI

When AI operates with a high degree of autonomy, it could be difficult
to link the damage it caused to the actions or omissions of a human actor
In the case of AI that lacks transparency (opacity) and explainability
(complexity), it could be difficult for injured parties to prove that
the conditions of liability (such as fault, a defect, or causation) are
fulfilled
Because of AI’s specific characteristics, victims of damage caused by AI
may in certain cases be less protected than victims of damage that
didn’t involve AI

It is uncertain how national courts will address possible difficulties
of proof and liability gaps in relation to AI
Question: Please elaborate on your answers or specify other grounds of
legal uncertainty regarding liability for damage caused by AI:
    (2000 character(s) maximum)
    0 out of 2000 characters used.

Question: Do you agree or disagree with the following statements?
    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

The lack of adaptation of the current liability framework to AI may
negatively affect trust in AI

The lack of adaptation of the current liability framework to AI may
negatively affect the uptake of AI-enabled products and services
Question: Please elaborate on your answers. You may reflect in
particular on the recently proposed AI Act and on the complementary
roles played by liability rules and the other safety-related strands of
the Commission’s AI policy in ensuring trust in AI and promoting the
uptake of AI-enabled products and services:
    (2000 character(s) maximum)
    0 out of 2000 characters used.

Question: If the current liability framework is not adapted, to what
extent do you expect the following problems to occur in relation to the
production, distribution or use of AI-enabled products or services, now
or in the foreseeable future? This question is primarily aimed at
businesses and business associations.

    To a very large extent
    To a large extent
    To a moderate extent
    To a small extent
    Not at all
    Don't know/no answer

Companies will face additional costs (e.g. legal information costs,
increased insurance costs)

Companies may defer or abandon certain investments in AI technologies
Companies may refrain from using AI when automating certain processes
Companies may limit their cross-border activities related to the
production, distribution or use of AI-enabled products or services
Higher prices of AI-enabled products and services
Insurers will increase risk-premiums due to a lack of predictability of
liability exposures

It will not be possible to insure some products/services
Negative impact on the roll-out of AI technologies in the internal market

Question: Please elaborate on your answers, in particular on whether
your assessment is different for AI-enabled products than for AI-enabled
services
    (2000 character(s) maximum)
    0 out of 2000 characters used.

Question: With the growing number of AI-enabled products and services on
the market, Member States may adapt their respective liability regimes
to the specific challenges of AI, which could lead to increasing
differences between national liability rules. The Product Liability
Directive could also be interpreted in different ways by national courts
for damage caused by AI.

If Member States adapt liability rules for AI in a divergent way, or
national courts follow diverging interpretations of existing liability
rules, to what extent do you expect this to cause the following problems
in the EU? This question is primarily aimed at businesses and business
associations.

    To a very large extent
    To a large extent
    To a moderate extent
    To a small extent
    Not at all
    Don't know/no answer

Additional costs for companies (e.g. legal information costs, increased
insurance costs) when producing, distributing or using AI-equipped
products or services

Need for technological adaptations when providing AI-based cross-border
services

Need to adapt AI technologies, distribution models (e.g. sale versus
service provision) and cost management models in light of diverging
national liability rules

Companies may limit their cross-border activities related to the
production, distribution or use of AI-enabled products or services
Higher prices of AI-enabled products and services
Insurers will increase premiums due to more divergent liability exposures
Negative impact on the roll-out of AI technologies
Question: Please elaborate on your answers, in particular on whether
your assessment is different for AI-enabled products than for AI-enabled
services, as well as on other impacts of possible legal fragmentation
    (2000 character(s) maximum)
    0 out of 2000 characters used.

Policy options

Question: Due to their specific characteristics, in particular their
lack of transparency and explainability (‘black box effect’) and their
high degree of autonomy, certain types of AI systems could challenge
existing liability rules.

The Commission is considering the policy measures, described in the
following questions, to ensure that victims of damage caused by these
specific types of AI systems are not left with less protection than
victims of damage caused by technologies that operate without AI. Such
measures would be based on existing approaches in national liability
regimes (e.g. alleviating the burden of proof for the injured party or
strict liability for the producer). They would also complement the
Commission’s other policy initiatives to ensure the safety of AI, such
as the recently proposed AI Act, and provide a safety net in the event
that an AI system causes damage.

Please note that the approaches to adapting the liability framework
presented below relate only to civil liability, not to state or criminal
liability. The proposed approaches focus on measures to ease the
victim’s burden of proof (see next question) as well as a possible
targeted harmonisation of strict liability and insurance solutions
(subsequent questions). They aim to help the victim recover damage more
easily.

Do you agree or disagree with the following approaches regarding the
burden of proof?  The answer options are not mutually exclusive.
Regarding the Product Liability Directive, the following approaches
build on the general options in the first part of this questionnaire.
    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

The defendant (e.g. producer, user, service provider, operator) should
be obliged to disclose necessary technical information (e.g. log data)
to the injured party to enable the latter to prove the conditions of the
claim
If the defendant refuses to disclose the information referred to in the
previous answer option, courts should infer that the conditions to be
proven by that information are fulfilled

Specifically for claims under the Product Liability Directive: if an
AI-enabled product clearly malfunctioned (e.g. driverless vehicle
swerving off the road despite no obstacles), courts should infer that it
was defective and caused the damage

If the provider of an AI system failed to comply with their safety or
other legal obligations to prevent harm (e.g. those proposed under the
proposed AI Act), courts should infer that the damage was caused due to
that person’s fault or that, for claims under the Product Liability
Directive, the AI system was defective

If the user of an AI system failed to comply with their safety or other
legal obligations to prevent harm (e.g. those proposed under the
proposed AI Act), courts should infer that the damage was caused by that
person’s fault
If, in a given case, it is necessary to establish how a complex and/or
opaque AI system (i.e. an AI system with limited transparency and
explainability) operates in order to substantiate a claim, the burden of
proof should be shifted from the victim to the defendant in that respect
Specifically for claims under the Product Liability Directive: if a
product integrating an AI system that continuously learns and adapts
while in operation causes damage, the producer should be liable
irrespective of defectiveness; the victim should have to prove only that
the product caused the damage
Certain types of opaque or highly autonomous AI systems should be
defined for which the burden of proof regarding fault and causation
should always be on the person responsible for that AI system (reversal
of burden of proof)
EU action to ease the victim’s burden of proof is not necessary or justified
Question: Please elaborate on your answers and describe any other
measures you may find appropriate:
    (2000 character(s) maximum)
    0 out of 2000 characters used.

Question: Separately from the strict liability of producers under the
Product Liability Directive, national laws provide for a wide range of
different strict liability schemes for the owner/user/operator. Strict
liability means that a certain risk of damage is assigned to a person
irrespective of fault.

A possible policy option at EU level could be to harmonise strict
liability (full or minimum), separately from the Product Liability
Directive, for damage caused by the operation of certain AI-enabled
products or the provision of certain AI-enabled services. This could
notably be considered in cases where the use of AI (e.g. in autonomous
vehicles and autonomous drones) exposes the public to the risk of damage
to important values like life, health and property. Where strict
liability rules already exist in a Member State, e.g. for cars, the EU
harmonisation would not lead to an additional strict liability regime.

Do you agree or disagree with the following approaches regarding
liability for operating AI-enabled products and providing AI-enabled
services creating a serious injury risk (e.g. life, health, property)
for the public?
    Strongly agree
    Agree
    Neutral    Disagree
    Strongly disagree
    No opinion

Full harmonisation of strict liability for operating AI-enabled products
and providing AI-enabled services, limited to cases where these
activities pose serious injury risks to the public
Harmonisation of strict liability for the cases mentioned in the
previous option, but allowing Member States to maintain broader and/or
more far-reaching national strict liability schemes applicable to other
AI-enabled products and services

Strict liability for operating AI-enabled products and providing of
AI-enabled services should not be harmonised at EU level
Question: Please elaborate on your answer, describe any other approaches
regarding strict liability you may find appropriate and/or indicate to
which specific AI-enabled products and services strict liability should
apply:
    (2000 character(s) maximum)
    0 out of 2000 characters used.

Question: The availability, uptake and economic effects of insurance
policies covering liability for damage are important factors in
assessing the impacts of the measures described in the previous
questions. Therefore, this question explores the role of (voluntary or
mandatory) insurance solutions in general terms.

The subsequent questions concern possible EU policy measures regarding
insurance. To what extent do you agree with the following statements?
    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

Parties subject to possible harmonised strict liability rules as
described in the previous question would likely be covered by (voluntary
or mandatory) insurance

In cases where possible facilitations of the burden of proof would apply
(as described in the question on approaches to burden of proof), the
potentially liable party would likely be covered by (voluntary or
mandatory) liability insurance

Insurance solutions (be they voluntary or mandatory) could limit the
costs of potential damage for the liable person to the insurance premium

Insurance solutions (be they voluntary or mandatory) could ensure that
the injured person receives compensation

Question: Please elaborate on your answers:
    (2000 character(s) maximum)
    0 out of 2000 characters used.

Question: Under many national strict liability schemes, the person
liable is required by law to take out insurance. A similar solution
could be chosen at EU level for damage caused by certain types of AI
systems that pose serious injury risks (e.g. life, health, property) to
the public.

Possible EU rules would ensure that existing insurance requirements are
not duplicated: if the operation of a certain product, such as motor
vehicles or drones, is already subject to mandatory insurance coverage,
using AI in such a product or service would not entail additional
insurance requirements.

Do you agree or disagree with the following approach on insurance for
the use of AI systems that poses a serious risk of injury to the public?
    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

A harmonised insurance obligation should be laid down at EU level, where
it does not exist yet, for using AI products and providing AI-based
services that pose a serious injury risk (e.g. life, health, property)
to the public

Question: Taking into account the description of various options
presented in the previous questions, please rank the following options
from 1 (like best) to 8 (like least)
1    2    3    4    5    6    7    8

Option 1: (Aside from measures to ease the burden of proof considered in
Section I) Amending the Product Liability Directive to ease the burden
on victims when proving an AI-enabled product was defective and caused
the damage
Option 2: Targeted harmonisation of national rules on proof, e.g. by
reversing the burden of proof under certain conditions, to ensure that
it is not excessively difficult for victims to prove, as appropriate,
fault and/or causation for damage caused by certain AI-enabled products
and services
Option 3: Harmonisation of liability irrespective of fault (‘strict
liability’) for operators of AI technologies that pose a serious injury
risk (e.g. life, health, property) to the public
Option 4: option 3 + mandatory liability insurance for operators subject
to strict liability

Option 5: option 1 + option 2
Option 6: option 1 + option 2 + option 3
Option 7: option 1 + option 2 + option 4
Option 8: No EU action. Outside the existing scope of the Product
Liability Directive, each Member State would be free to adapt liability
rules for AI if and as they see fit
Question: Please elaborate on your answers, also taking into account the
interplay with the other strands of the Commission’s AI policy (in
particular the proposed AI Act). Please also describe any other measures
you may find appropriate:
    (2000 character(s) maximum)
    0 out of 2000 characters used.

Types of compensable harm and admissibility of contractual liability waivers

Question: Aside from bodily injury or damage to physical objects, the
use of technology can cause other types of damage, such as immaterial
harm (e.g. pain and suffering). This is true not only for AI but also
for other potential sources of harm. Coverage for such damage differs
widely in Member States.

Do you agree or disagree with harmonising compensation for the following
types of harm (aside from bodily injury and property damage),
specifically for cases where using AI leads to harm? Please note that
this question does not concern the Product Liability Directive – a
question on the types of harm for which consumers can claim compensation
under this Directive can be found in Section I. The answer options are
not mutually exclusive.
    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

Pure economic loss (e.g. loss of profit)
Loss of or damage to data (not covered by the GDPR) resulting in a
verifiable economic loss

Immaterial harm like pain and suffering, reputational damage or
psychological harm

Loss of or damage to data (not covered by the GDPR) not resulting in a
verifiable economic loss

All the types of harm mentioned above

Question: Please specify any other types of harm:
    (500 character(s) maximum)
    0 out of 500 characters used.

Question: Sometimes the person who has suffered damage has a contract
with the person responsible. That contract may exclude or limit the
right to compensation. Some Member States consider it necessary to
prohibit or restrict all or certain such clauses. The Product Liability
Directive also does not let producers limit or exclude their liability
towards the injured person by contract.

If the liability of operators/users for damage caused by AI is
harmonised at EU level, do you agree or disagree with the following
approaches regarding contractual clauses excluding or limiting in
advance the victim’s right to compensation?
    Strongly agree
    Agree
    Neutral
    Disagree
    Strongly disagree
    No opinion

The admissibility of contractual liability waivers should not be
addressed at all

Such contractual clauses should be prohibited vis-à-vis consumers
Such contractual clauses should be prohibited vis-à-vis consumers and
between businesses

The contractual exclusion or limitation of liability should be
prohibited only for certain types of harm (e.g. to life, body or health)
and/or for harm arising from gross negligence or intent
Question: Please elaborate on your answer and specify if you would
prefer a different approach, e.g. an approach differentiating by area of
AI application:
    (2000 character(s) maximum)
    0 out of 2000 characters used.


Additional information

Question: Are there any other issues that should be considered?
    (3000 character(s) maximum)
    0 out of 3000 characters used.

Question: You can upload relevant quantitative data, reports/studies and
position papers to support your views here:

     Only files of the type pdf,txt,doc,docx,odt,rtf are allowed

Question: Do you agree to the Commission contacting you for a possible
follow-up?
    Answer
Yes
    Answer
No

If you're human, leave this field blank

Contact
Mark.BEAMISH@ec.europa.eu
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promotes interoperability solutions for European public administrations.

Whatever the European Commission comes up with at the end, we keep our hopes low in light of unbridled cronyism.

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