On August 22, 2023, the Spanish Council of Ministers approved the Statute of the Spanish Agency for the Supervision of Artificial Intelligence (“AESIA”) thus creating the first AI regulatory body in the EU. The AESIA will start operating from December 2023, in anticipation of the upcoming EU AI Act (for a summary of the AI Act, see our EMEA Tech Regulation Toolkit). In line with its National Artificial Intelligence Strategy, Spain has been playing an active role in the development of AI initiatives, including a pilot for the EU’s first AI Regulatory Sandbox and guidelines on AI transparency.
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The EU Stance on Dark Patterns
On December 9, 2022, the European Commissioner for Justice and Consumer Protection, Didier Reynders, announced that the European Commission will focus its next 2023 mandate on regulating dark patterns, alongside transparency in the online advertising market and cookie fatigue. As part of this mandate, the EU’s Consumer Protection Cooperation (“CPC”) Network, conducted a sweep of 399 retail websites and apps for dark patterns, and found that nearly 40% of online shopping websites rely on manipulative practices to exploit consumers’ vulnerabilities or trick them.
In order to enforce these issues, the EU does not have a single legislation that regulates dark patterns, but there are multiple regulations that discuss dark patterns and that may be used as a tool to protect consumers from dark patterns. This includes the General Data Protection Regulation (“GDPR”), the Digital Services Act (“DSA”), the Digital Markets Act (“DMA”), and the Unfair Commercial Practices Directive (“UCPD”), as well as proposed regulations such as the AI Act and Data Act.
As a result, there are several regulations and guidelines that organizations must consider when assessing whether their practices may be deemed as a dark pattern. In this blog post, we will provide a snapshot of the current EU legislation that regulates dark patterns as well as upcoming legislative updates that will regulate dark patterns alongside the current legal framework.…
European Commission Publishes Directive on the Liability of Artificial Intelligence Systems
On September 28, 2022, the European Commission published its long-promised proposal for an AI Liability Directive. The draft Directive is intended to complement the EU AI Act, which the EU’s institutions are still negotiating. In parallel, the European Commission also published its proposal to update the EU’s 1985 Product Liability Directive. If adopted, the proposals will change the liability rules for software and AI systems in the EU.
The draft AI Liability Directive establishes rules applicable to non-contractual, fault-based civil claims involving AI systems. Specifically, the proposal establishes rules that would govern the preservation and disclosure of evidence in cases involving high-risk AI, as well as rules on the burden of proof and corresponding rebuttable presumptions. If adopted as proposed, the draft AI Liability Directive will apply to damages that occur two years or more after the Directive enters into force; five years after its entry into force, the Commission will consider the need for rules on no-fault liability for AI claims.
As for the draft Directive on Liability of Defective Products, if adopted, EU Member States will have one year from its entry into force to implement it in their national laws. The draft Directive would apply to products placed on the market one year after it enters into force.…