EPRS BRI(2023)739342 EN · Table (p.7)
From EPRS_BRI(2023)739342_EN.pdf · page 7
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| | Third, the claimant has demonstrated that the output produced by the AI system or the AI |
| system's inability to produce an output gave rise to the damage (Article 1(c)). | |
| By reducing the burden of proof, the AI liability directive intends to make it easier for people alleging | |
| injury from AI to succeed in bringing claims, given the complexity of the AI environment (i.e. 'black | |
| box'). 21 In practice, the new rule means that if a victim can show that someone was at fault for not | |
| complying with a certain obligation relevant to their harm, and that a causal link with the AI | |
| performance is reasonably likely, the court can presume that this non-compliance caused the | |
| damage. | |
| The defendant may, however, rebut this presumption of causality, for example by showing that | |
| its fault could not have caused the damage (recital 30). | |
| The proposed approach does not entail a reversal of the burden of proof, according to which the | |
| victim no longer bears the burden of proof and it is for the person liable to prove that the conditions | |
| of liability are not fulfilled. The Commission discards such a reversal of the burden of proof to avoid | |
| exposing providers, operators and users of AI systems to higher liability risks, which could hamper | |
| innovation in AI-enabled products and services.22 Under the proposed approach, the victim would, | |
| instead, still bear the burden of proof, but the presumption of causality would result in a targeted | |
| alleviation of the burden of proof regarding the question as to how or why an AI system reached a | |
| certain harmful output. This approach would relieve victims of the need to demonstrate the inner | |
| workings of the AI system at stake. | |
| Disclosure of evidence | |
| The large number of people potentially involved in the design, development, deployment and | |
| operation of high-risk AI systems, makes it very difficult for plaintiffs to identify the person | |
| potentially liable for damage caused and to prove the conditions for a claim for damages. To remedy | |
| this, the AI liability directive would give national courts the power to order disclosure of evidence | |
| about high-risk AI systems that are suspected of having caused damage (Article 3(1)). The new | |
| rules would help victims to access relevant evidence to identify the person that could be held liable, | |
| for instance, when damage is caused because an operator of drones delivering packages does not | |
| respect the instructions for use or because a provider does not follow requirements when using AI- | |
| enabled recruitment services. 23 Accordingly, companies responsible for high-risk AI systems would | |
| be required to disclose a range of information including specific documentation, information and | |
| logging requirements.24 | |
| Requests are to be addressed to parties that bear obligations under the AI act, i.e. the provider of an | |
| AI system, a person who is subject to the provider's obligations laid down under the AI act or a user | |
| pursuant to the AI act. The claimant must present sufficient evidence to support the claim and make | |
| proportionate effort to obtain evidence from the defendant. The claimant could also request the | |
| disclosure of evidence from providers or users that are not defendants, but only in cases where all | |
| proportionate attempts made to gather the evidence from the defendant were unsuccessful. In | |
| addition, for the judicial means to be effective, the AI liability directive would also provide that a | |
| court may also order the preservation of such evidence (Article 3(3)). | |
| Disclosure of evidence must be necessary and proportionate to support a claim for damages. In | |
| this respect, national courts would be required to consider the legitimate interests of all parties, | |
| (including third parties) and the protection of trade secrets and of confidential information, such as | |
| information related to public or national security (Article 3(4)). Should a defendant fail to comply | |
| with an order by a national court to disclose or to preserve evidence at its disposal, the national | |
| court would be entitled to presume the evidence requested was intended to prove non-compliance | |
| with a relevant duty of care obligation. The defendant, however, has the right to rebut that | |
| presumption. |
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