British Columbia Law Institute Report on Artificial Intelligence and Civil Liability

The British Columbia Law Institute recently published a Report on Artificial Intelligence and Civil Liability that explains how the current law of tort needs adapting to new realities.

Artificial intelligence raises complex issues when it comes to assigning liability for harm to humans, to their property or to other interests.

The report comes out against assigning strict liability for harms produced by artificial intelligence. Under strict liability, there is no need to prove fault on the part of a defendant. Only causation and damage need to be proven.

The authors prefer adapting ideas relating to product liability (p.44):

"The Project Committee considers that product liability law in the common law Canadian jurisdictions provides some answers regarding a just and balanced theory of liability while avoiding the difficulties of the other approaches discussed above. The principles concerning duty of care under product liability law may be applied by analogy to cases involving artificial intelligence without the need to take a definitive position on whether artificial intelligence itself may be characterized as a product."

"We would look to product liability law in regard to the liability of potential defendants situated “upstream” in the chain of events leading to litigation. Upstream defendants would be those involved in the design, development, training and testing of artificial intelligence systems prior to the point at which the systems are placed on the market or deployed in actual use. The liability of “downstream”  defendants, namely operators and other end-users, involves different considerations and is discussed later."

"A developer of a complete system that employs artificial intelligence may be realistically compared to a manufacturer of a complex product with numerous integrated components (...)"

"Product liability law recognizes a duty of care on the part of manufacturers and others who place a product in the stream of commerce towards anyone who may reasonably be foreseen to be at risk of damage or injury if the product is unsafe, not only towards those who acquire the product or who deal in some manner with the manufacturer."