The Articles of the AI Liability Directive (Proposal 28.9.2022)

Article 3, Disclosure of evidence and rebuttable presumption of non-compliance.

1. Member States shall ensure that national courts are empowered, either upon the request of a potential claimant who has previously asked a provider, a person subject to the obligations of a provider pursuant to [Article 24 or Article 28(1) of the AI Act] or a user to disclose relevant evidence at its disposal about a specific high-risk AI system that is suspected of having caused damage, but was refused, or a claimant, to order the disclosure of such evidence from those persons.

In support of that request, the potential claimant must present facts and evidence sufficient to support the plausibility of a claim for damages.

2. In the context of a claim for damages, the national court shall only order the disclosure of the evidence by one of the persons listed in paragraph 1, if the claimant has undertaken all proportionate attempts at gathering the relevant evidence from the defendant.

3. Member States shall ensure that national courts, upon the request of a claimant, are empowered to order specific measures to preserve the evidence mentioned in paragraph 1.

4. National courts shall limit the disclosure of evidence to that which is necessary and proportionate to support a potential claim or a claim for damages and the preservation to that which is necessary and proportionate to support such a claim for damages.

In determining whether an order for the disclosure or preservation of evidence is proportionate, national courts shall consider the legitimate interests of all parties, including third parties concerned, in particular in relation to the protection of trade secrets within the meaning of Article 2(1) of Directive (EU) 2016/943 and of confidential information, such as information related to public or national security.

Member States shall ensure that, where the disclosure of a trade secret or alleged trade secret which the court has identified as confidential within the meaning of Article 9(1) of Directive (EU) 2016/943 is ordered, national courts are empowered, upon a duly reasoned request of a party or on their own initiative, to take specific measures necessary to preserve confidentiality when that evidence is used or referred to in legal proceedings.

Member States shall also ensure that the person ordered to disclose or to preserve the evidence mentioned in paragraphs 1 or 2 has appropriate procedural remedies in response to such orders.

5.Where a defendant fails to comply with an order by a national court in a claim for damages to disclose or to preserve evidence at its disposal pursuant to paragraphs 1 or 2, a national court shall presume the defendant’s non-compliance with a relevant duty of care, in particular in the circumstances referred to in Article 4(2) or (3), that the evidence requested was intended to prove for the purposes of the relevant claim for damages.

The defendant shall have the right to rebut that presumption.

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Cyber Risk GmbH
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8810 Horgen
Tel: +41 79 505 89 60
Email: george.lekatis@cyber-risk-gmbh.com

Web: https://www.cyber-risk-gmbh.com

We process and store data in compliance with both, the Swiss Federal Act on Data Protection (FADP) and the EU General Data Protection Regulation (GDPR). The service provider is Hostpoint. The servers are located in the Interxion data center in Zürich, the data is saved exclusively in Switzerland, and the support, development and administration activities are also based entirely in Switzerland.

Understanding Cybersecurity in the European Union.

1. The NIS 2 Directive

2. The European Cyber Resilience Act

3. The Digital Operational Resilience Act (DORA)

4. The Critical Entities Resilience Directive (CER)

5. The Digital Services Act (DSA)

6. The Digital Markets Act (DMA)

7. The European Health Data Space (EHDS)

8. The European Chips Act

9. The European Data Act

10. The European Data Governance Act (DGA)

11. The EU Cyber Solidarity Act