Civil Liability Applicable to Artificial Intelligence: A Preliminary Critique of the European Parliament Resolution of 2020

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On 20 October 2020, the European Parliament approved a Resolution with recommendations to the Commission on a civil liability regime for artificial intelligence (2020/2014(INL)) (the 2020 Resolution). The Resolution highlighted the importance of defining a clear and harmonised civil liability regime in Europe for the development of artificial intelligence technologies and the products and services that benefit from them, so as to provide due legal certainty for producers, operators, affected persons and other third parties. The same motivation had previously led the European Parliament to put forward a series of proposals on the subject of liability in its 2017 Resolution (European Parliament Resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)). There are some important differences between the two documents. These differences reflect the deeper analysis that the European Commission, in particular, has been engaged in with regard to civil liability for harm attributable to artificial intelligence systems. On this subject, we may note, lastly, the “Report on the safety and liability implications of Artificial Intelligence, the Internet of Things and robotics” (COM(2020) 64 final - Report), which accompanies the European Commission White Paper on Artificial Intelligence – COM(2020) 65 final, of 19 February 2020 (White Paper). One important element underpinning the 2020 Resolution is the distinction made between two different regimes for establishing civil liability for harm attributed to artificial intelligence-systems: strict liability for high-risk situations, and subjective liability with a presumption of fault, in other situations. The aim of these brief notes is to, on one hand, provide a critical assessment of how far this option corresponds to the assumptions on which the Resolution is based, also taking a brief look at the concept of wrongdoing proposed and the scope of compensable harm, and, on the other hand, to assess the adequacy of the distinction indicated in the light of the choices made in the 2017 Resolution and, above all, in the light of the challenges that the development of artificial intelligence raises for the traditional foundations on which compensation regimes have been based up to the present.