The freedom to conduct a business as a driver for AI governance

Abstract

Artificial Intelligence (‘AI’) is associated with several risks that need to be contained and mitigated through an appropriate AI governance framework. However, it is also crucial to take into account the opportunities and societal benefits of AI and to consider and respect businesses as key actors in the context of AI. The freedom to conduct a business is a fundamental right enshrined in Article 16 of the Charter of Fundamental Rights of the European Union. It cannot be considered a diminished or functionalised right, nor are companies necessarily a threat to human rights or an obstacle to the pursuit of human-centred governance of AI. As in any scenario of conflict or collision between fundamental rights and interests, a fair balance must be struck between the subjective positions of different stakeholders. Ensuring respect for the freedom to conduct a business safeguards innovation and the flourishing of new opportunities that ultimately benefit citizens and the public interest. In the European Union legal system, AI governance will be shaped by both the ‘Artificial Intelligence Act’ and novel rules to address liability issues related to AI systems. While its prima facie content is affected by several provisions and obligations, in particular, for providers of high-risk AI systems, the EU legislator does not neglect the freedom to conduct a business. It seeks to provide legal certainty, ensure proportionality and address the special condition of small and medium-sized enterprises and start-ups. However, the rigidity of some provisions and the approach to risk, together with the uncertainty that characterises the normative environment of the AI, leave room for improvement and for further escape valves, with the future application being of particular importance.