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6. Liability and damage management
As seen above, the approach adopted by the European legislator in the AI Act is based on a risk management model, whereby – as of today – there are prohibited uses of AI systems, uses that must be implemented with specific safeguards, and uses that are essentially free. Companies are increasingly aligning with this approach, yet there is always concern that the use of AI systems may lead to breaches of laws or third-party rights. This includes well-known cases in which companies, sometimes even through mere naivety, become involved in disputes lying in the grey area between inspiration and unlawful appropriation, including cultural appropriation.
The AI Act did not introduce a harmonised regime for civil liability arising from damage caused by AI, or rather from the use of AI. This remains one of the central and most debated legal issues still open, with many problematic aspects yet unresolved.
According to the authors, there is room to frame AI-related liability, at present, within the concept of liability for defective products. This conclusion is justified by the fact that AI is ultimately a “product” of human activity. In this direction, the European legislator has taken steps through Directive (EU) 2024/2653 on the liability of manufacturers towards consumers, extending its scope to include those who developed the software and the author of the underlying algorithm. In this regard, Article 4(1) defines a product as “any movable property, even if incorporated into another movable or immovable property or interconnected with it; including electricity, digital manufacturing files, raw materials and software”.
In the absence of comprehensive national and international rules on this matter, the recommendation is to approach AI tools with caution and to design organisational frameworks capable of managing risks as far as possible, in line with the requirements of the AI Act. Continuous training and a close, ongoing collaboration with companies’ legal functions represent the most appropriate instruments to address both the opportunities and the risks brought about by intelligent systems.
