AI or Application Error Will Be Considered a Defect: EU Strengthens Developers' Liability
The European Union is preparing a major overhaul of liability rules for defective products, effectively equating software, digital services, and artificial intelligence systems with traditional goods. This means that an algorithm error, application failure, or incorrect operation of an AI system may have the same legal consequences for the manufacturer as a defective physical product.
The new rules aim to protect users from technological risks that grow alongside the development of the digital economy, while significantly increasing the level of responsibility for businesses.
As part of the implementation of EU Directive 2024/2853, changes to civil legislation are being prepared that expand the concept of "product" and introduce a new model of manufacturer liability. This concerns the harmonization of rules in EU countries regarding compensation for damage caused by dangerous goods and technologies.
The new regime will apply to products placed on the market or put into use after December 9, 2026.
Software, AI, and Digital Services Become "Products"
One of the key changes is a significant expansion of the very concept of a product. From now on, it will explicitly include not only tangible items but also digital and energy objects.
In particular, software, artificial intelligence systems, digital production files, energy, and certain types of raw materials will be considered products. Separate concepts of "digital components" and "related digital services," without which the product cannot fully function, are introduced.
Effectively, this means that applications, algorithms, and AI systems are equated with ordinary goods in terms of liability for damage.
Liability for Damage to Life, Health, and Property
The new rules cover damage caused to individuals. Primarily, this concerns harm to life and health, including death, bodily injuries, and health disorders.
The legislation also separately considers mental disorders if they have medical confirmation and affect the person's overall condition. Such cases may require treatment or therapy, which is explicitly established in the EU approaches.
Compensation for property damage is also provided, except for assets used exclusively in professional or entrepreneurial activities.
Manufacturer Liability: Without Proof of Fault
The key legal change is the introduction of a risk-based liability principle. This means that the manufacturer or developer is obliged to compensate for damage regardless of whether they were at fault.
It is sufficient to establish three elements: the existence of damage, defectiveness (dangerousness) of the product, and a causal link between them. The mere fact of non-compliance with safety standards can already be grounds for liability.
This approach significantly strengthens consumer protection while increasing the legal burden on companies operating in the technology sector.
How the Concept of "Defect" Changes
The European approach moves away from the classical concept of "product flaw." Now the key criterion is safety: a product is considered defective if it does not provide the level of safety that can be reasonably expected.
This is especially important for digital technologies that change after launch—through updates, integrations, or self-learning algorithms.
AI and Complex Technologies: A Zone of Increased Legal Risks
A separate challenge is artificial intelligence systems. In disputes, questions may arise about what exactly caused the damage: the initial algorithm, an update, data, integration with other services, or even third-party interference.
Such technologies have a dynamic nature, so establishing causality is more complicated than with classic goods.
Easing the Burden of Proof for Victims
To balance the complexity of technological disputes, the new rules provide procedural mechanisms to protect consumers.
Among them is the possibility to demand the disclosure of technical evidence from the manufacturer, as well as the introduction of presumptions of defectiveness and causality in certain cases. This is intended to reduce barriers to filing lawsuits in complex technological disputes.
The European reform forms a new model of digital liability: software, artificial intelligence, and digital services are no longer considered "intangible exceptions" but fall under the same rules as traditional goods. This changes the balance between innovation and consumer protection, strengthening manufacturers' legal liability in the digital age.
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