Employer as an AI System Operator and Tortious Liability for Damage Caused by AI Systems: European and US Perspectives

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Abstract The article examines if the standard of protecting parties injured by artificial intelligence (AI) systems used by professional operators is high in the European Union (EU) as compared to the USA—that is, whether the liability model of an operator, as applicable in the EU, ensures that injured parties have effective protection. For the purposes of this article, the term ‘effective protection’ should be understood as referring to a liability model guaranteeing to injured parties a real possibility of obtaining due compensation without the burden of proof that a claimant cannot fulfil. The EU legislature has proposed amendments in the area of non-contractual civil liability of AI system users, which also includes professional operators of such systems. An employer using an AI system for professional or commercial purposes and deriving profits from such use qualifies, in a legal sense, as a professional operator of such a system. Therefore, it is worth considering the question whether the EU, compared to the USA, is really in the vanguard when it comes to drafting legislation tailored to the challenges of AI technology and if the currently proposed legislative amendments ensure effective legal protection to persons injured by AI systems used by a professional operator.