To civil liability in the use of Artificial Intelligence: Challenges and prospects

In Brazil, even though the legislation in force, and to provide you general guidance on the liability of the absence of specific rules, for he has gaps in it, and another.

Artificial Intelligence (AI) has promoted significant advances in many fields, such as health care, transportation, education, and commerce, by fundamentally changing the way in which a society interact and use technology. However, the exponential growth in the use of AI also brings with it concerns of cool, especially with regard to the liability. When the systems are GOING to cause you harm, there is the challenge of identifying those who should be held responsible: the developer and the manufacturer, the operator, or the end-user?

In Brazil, even though the legislation in force, and to provide you general guidance on the liability of the absence of specific rules, for he has gaps in it, and another. This is especially true in the face of the growing autonomy of these systems, which often make decisions in unpredictable, even to their creators. 

The concept of Artificial Intelligence and its use in Brazil

Artificial intelligence can be defined as the ability of computer systems to perform tasks that normally require human intelligence, such as decision making, pattern recognition, and learning. In Brazil, the AI has been widely used in the industries such as financial services, transportation, health care, and even in the Judiciary, through the use of an algorithm to assist in the admission of resources, and to the analysis of the process.

However, in the absence of specific legislation in Brazil leads to uncertainty as to the application of the principles of liability in a civil action. Instruments, such as the Civil Code and the Civil rights Framework for the Internet, and the Law on Data Protection (LGPD) offers some guidance, but they lack the breadth to address the specific circumstances of AI, especially in terms of the autonomy of the systems. 

To civil liability in the context of R: Objective and subjective

To civil liability, in Brazil, it can be categorized into two main types: strict, according to the art-9271 of the Civil Code, there is no blame, and this is applied to the case in which the activity of the agent, and, by their nature, involve risk to the rights of others, or in special cases as are provided by law. It already is the responsibility of the subjective, which is covered by art. (1862) and require evidence of the willful misconduct or negligence of the agent’s being set up when there is a wrongful act that causes injury to another person, on the causal link between the conduct and the injury. In the context of the use of AI, there are many questions about how these two systems may be applied.

– The liability of the relationship between the consumption involving Artificial Intelligence (AI), there are unique challenges to providers, especially as a result of the reversal of the burden of proof in favour of the consumer. This feature requires the providers of the need for production of evidence is robust to push away the responsibility, and, as appropriate, in the context of a court.

The definition of a ‘defect’ in the product, in the context of AI, it acquires new dimensions, and is widely discussed in the cases. Issues such as the duty of disclosure and compliance in the use according to the guidelines of the supplier to make them even more power. Concepts such as ‘risk reasonably to be expected’ and ‘risk’ assume a leading role in the debate, requiring in-depth analyses and techniques in order to delineate the limits of the liability of the supplier.

In addition to this, the evidence presents a significant technical challenges due to the complexity of the systems, I WOULD. The work of the legal experts and highly trained in the technology, it will be necessary, as well as the technical skills of the parties involved in order to support their arguments. This dynamic puts to the test the structure of the judicial system in dealing with the demands of a variety of high complexity.

It is also that of the Consumer protection Code, it being a law principiológica with a series of illustration from the practice infrativas, leaves room for interpretations and varied. This feature, though praised as a virtue of the system, can lead to uncertainties in the practical application in a field so new and disruptive as it were. Your marketplace to face the challenges that are related to the uniformity of understanding of the issues that are still under construction, legal advice.

So, even though the legislative framework to the current offer some support and discussion of the regulation of the specific is in progress, there is a clear spaces to be filled in relation to administrative and judicial review. The goal is to achieve a balance in which the rights of the consumer as to the quality and safety of products and services that may be preserved, and at the same time, to ensure the protection of supplier and the encouragement of innovation in technology. That a harmonisation is possible to establish a regulatory environment that’s safe for and conducive to the development of solutions based on AI.

On the other hand, it is the responsibility of subjective, it can also be applied in cases where it is not possible to identify human errors, like in programming, algorithm, or the inadequate supervision of the systems GOING. If this is the case, it would be necessary to prove that the developer, operator, or user, has acted with gross negligence, recklessness, or in a reckless manner. 

The difficulties in the identification of those responsible in the case of autonomous systems

One of the most difficult in the context of AI is the name of the person responsible for the damage. Stand-alone systems which can make complex decisions without human intervention, direct, and that makes it more difficult for the attribution of responsibility. In a scenario in which an autonomous vehicle causes an accident, for example, would be the manufacturer of the motor vehicle, the developer of the algorithm, or the owner of the car is responsible for this?

In addition to this, the use of machine learning algorithms and self-improve over time compounds this challenge, given that the decisions may be the result of a learning process that was not planned or controlled at the time of its initial programming.

Legal doctrine has been discussed is the possibility of the establishment of a regime of liability specific to AI, which is to include a picture of a ‘supervisor’, the human is responsible for the continuous monitoring of systems self-employed. This oversight could reduce the risk, but it also would require the creation of new benchmarks for product liability, as to the duty of care and the continuous updating of the systems is GOING to. 

The current status of the regulations in Brazil

Brazil has taken a significant step in the regulation of Artificial Intelligence (AI), with the approval of the Senate on December 10, 2024, with a set of rules focused on the development and operation of the systems that WENT into the país3. These rules seek to balance the protection of citizens ‘ rights, safety, and transparency in the use of technology, and the need to promote innovation and the growth of the industry.

The security and Transparency of The new law emphasizes on the safety and security of the data and the transparency of the algorithms that are used in the systems GOING. It sets guidelines for the collection, storage and use of your data, with a focus on the protection of personal information, and to combat discrimination in algorithmic. These aspects are in direct contact with the need to ensure that their systems WOULD not meet the expected standards of reliability and predictability, a theme that has been discussed in the article, but it could be expanded to include discussions on how to implement these conditions in a practical way.

Supervision: A focal point of the new law is the creation of a National System for the Regulation and Governance of Artificial Intelligence (CIS), which will have the role to oversee the development and use of systems, AI, and ensuring compliance with the rules. In addition, it has been, will be responsible for promoting the education, and the development of best practices WOULD contribute to the mitigation of the risks that are associated with the use of this technology. The article mentions the need for human supervision, but it could be to explore how the work of organizations such as the CIS, will influence the allocation of responsibilities in case of damages.

Sanctions and Penalties-It is a highlight of the sanctions for non-compliance with the rules. Among the penalties, including significant fines and the suspension of the systems that could pose a risk to the safety or that violates the rights set out in the legislation. Such devices will increase the importance of an approach to the ethical and responsible development and use of AI, demanding that the companies most committed to legal compliance. The impact of these sanctions on the practice of corporate and technological innovation, it deserves special attention, since it can directly affect the way in which the business operates, and invests in solutions that I am GOING.

In this regulation, it marks the beginning of a more solid structure for the governance of it in Brazil, but it also depends on your implementation and the development of institutional capacity for implementation. In this sense, the advance in the legislature, it must be accompanied by efforts to educate the operators on the Right, as well as experts and developers, and promoting a eco-system in which the liability is well established, and the technological solutions that are able to thrive. 

Gaps in the laws and the need for specific regulations

This bill is in progress on the system’s Intelligence Artificial4, it has been widely criticized for its proposals, which, according to some of the especialistas5, you could end up engessando to the development and innovation in the area due to the excess of the restrictions and the lack of clarity with regard to the practical application. This is a critical point to the need for a balance between the protection of human rights and the promotion of the advancement of technology. The lack of clarity in the legislative leads to uncertainty about how to apply the principles of liability in a case involving AI, which can discourage innovation, and leave consumers unprotected.

A possible solution would be the creation of a specific regulatory framework for AI, based on international standards such as the eu Europeia6, that the proposed guidelines in order to ensure the transparency and security of the systems that I am GOING. This framework would provide clear responsibilities for developers, operators, and users, and to establish guidelines for the certification and auditing of the systems is GOING to. 

Concluding remarks and perspectives for the future

Artificial intelligence represents a technological revolution that will bring about tremendous benefits to society, but it also poses challenges for the legal material. To civil liability in the use of AI is still a field under development, and there is a need to adapt to the rules of law to deal with the new realities of the technology.

However, it is important that the legislature of Brazil’s fast-forward to the regulations specific to the AI to ensure the protection of the rights of the citizens, and at the same time, to promote the technological innovation. The development of a system of civil liability in the most clear and efficient manner, which takes into consideration the responsibility of the objective and the subjective, it is essential to balance the interests of the parties concerned, and to ensure an environment-legal, secure, and reliable, the use of AI.

1 Art. 927. The one who, by the wrongful act (art. 186 and 187), causes damage to another, shall be required to repair it. (See ADI’s no. 7055) (See ADI no. 6792). Ii. There will be an obligation to make good the damage, regardless of fault, and in the cases specified in the law, or when the activity is usually developed by the author of the injury involves, by its very nature, a risk to the rights of others.

2 Art. 186. The one who, by act or omission by a voluntary act, neglect, or lack of, to violate the law and cause harm to someone else, even exclusively, moral, and makes the act a crime.

3 https://oglobo.globo.com/economia/noticia/2024/12/10/senado-aprova-projeto-de-regulamentacao-de-inteligencia-artificial-no-brasil.ghtml

4 https://www25.senado.leg.br/web/atividade/materias/-/materia/157233

5 https://www12.senado.leg.br/radio/1/noticia/2024/09/05/especialista-criticam-proposta-de-regulamentacao-da-inteligencia-artificial

6 https://www.europarl.europa.eu/topics/pt/article/20230601STO93804/lei-da-ue-sobre-ia-primeira-regulamentacao-de-inteligencia-artificial#:~:text=Em%20abril%20de%202021%2C%20a%20Comiss%C3%A3o%20Europeia%20prop%C3%B4s,com%20o%20risco%20que%20representam%20para%20os%20utilizadores.

https://www.migalhas.com.br/depeso/422333/a-responsabilidade-civil-no-uso-de-inteligencia-artificial