Private Liability for AI-related Harm: Towards More Predictable Rules for the Single Market

Artificial intelligence (AI) is an integral part of our everyday lives, able to perform a multitude of tasks with little to no human intervention. The number of devices with integrated digital features on the market, including consumer products, is constantly increasing. Many legal issues related to this phenomenon have not been comprehensively addressed or resolved yet. Also, the question arises whether the existing legal rules on damages liability can resolve cases involving AI so as to make case outcomes predictable across the Union. The EU institutions are in the process of evaluating if and to what extent new legislation regarding AI is needed, envisioning a European approach to avoid fragmentation of the Single Market. This article critically analyses the most relevant preparatory documents and proposals with regard to civil liability for AI issued by EU legislators. Moreover, it is crucial to clarify the applicability of existing EU legislation such as the framework concerning product safety and product liability to new technologies. To achieve a more predictable framework for the future, the legislation applicable to AI must be aligned and it must be evident which rules are applicable in which situation. The envisioned level playing field throughout the Single Market justifies harmonisation of many aspects of damages liability for AI-related harm. In the process, particular AI characteristics should be carefully considered in terms of questions such as causation, fault, and the burden of proof.