Defective software and algorithms: some considerations on the liability of the software or AI system developer

Abstract

On 28 September 2022, the European Commission published the Proposal for a Directive to replace the long-standing Directive 85/374/EEC on defective products. One of the problems with the current directive regulating this matter is the technical difficulty posed by its applicability to damage caused by goods that incorporate artificial intelligence systems. Given that it only applies to damage caused by movable goods, it leaves damage caused by an algorithm outside its scope of application. However, the European legislator has set out to remedy this situation and the Proposal for a Directive states that software and artificial intelligence systems are a product. Furthermore, it includes the developer or provider of artificial intelligence systems within the concept of producer. In this paper, we will deal with the text of the Proposal for a Directive and the regulation of one of the key aspects of the new regulation: the liability of the software or algorithm developer.