Artificial intelligence has innumerable applications in society. Algorithms have a certain degree of autonomy in their functioning. Therefore, their “behaviour” evolves over time, and the relationship of cause and effect, as regards causation of damages, may be not linear as we believe. Results of AI activity may be unpredictable despite no flaw in design or implementation. Many proposals were made in order to adapt civil liability rules in this. The author drafts here a proposal grounded on the ideas that (1) overall benefits of artificial intelligence evolution outweigh costs deriving therefrom, so that it should be encouraged or, at least, not hindered; (2) “traditional” civil liability rules (either based on fault or strict liability) may provide a negative incentive toward such evolution, insofar as they may impose the obligation to pay redress onto producers and programmers of AI devices despite no flaw in design or implementation. He proposes, in this respect, no-fault redress schemes as an interesting and worthy regulatory strategy to this end.
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The current paradigm of civil liability laws can be understood as indirect market regulation, since the risk of incurring liability for damages provides an incentive to invest in safety (“deterrence”). It is believed, in fact, that any increase of liability to producers and suppliers of goods and services will increase investments in safety to avoid incurring liability, so that the tougher civil liability rules on producers and other professionals, the higher the overall level of safety within the system (Calabresi, 1970; Cooter & Ulen, 2008; Viscusi & Hersh, 2013).
The idea that civil liability must have a deterrent function presupposes that the obligation to pay damages is attributed to the person whom the legal systems identifies as the addressee of such deterrence; the person, in other words, whose investment in safety is to be fostered. This paradigm has remained substantially constant over time and has developed on two main strategies for allocating the obligation to pay damages: liability for fault and strict liability.
The first and most important criterion for attributing the obligation to pay compensation for damages is that of fault, an idea which is deeply rooted in legal thinking (Comporti, 1965) and lies at the very foundation of all modern civil liability regimes (Bussani & Sebok, 2015). The aforementioned paradigmatic centrality of “deterrence” has evolved, but has remained in place, when most relevant social, political and economic changes directed legal thought toward a growing quest for solidarity in all western legal systems, regardless of their civil-law or common-law basic structure (in comparative perspective see: Taylor, 2015), which “reach similar results because they must address and resolve the same basic fact patterns” (Engle, 2009).
In fact, the quest for solidarity, greatly prompted by the factual consequences and upheavals derived after the industrial revolution, brought legislators to consider unjust that damages following certain (intrinsically risky) activities should be borne by consumers and other end-users of goods and services unless a “fault” of producers or other professionals could be proven in court. Therefore, throughout the whole XX century, legislators reallocated the cost of (some) accidents from customers and end-users to producers and other professionals, since the latter were thought to be in a better position to spread the cost of accidents and arrange for appropriate prevention policies (Calabresi, 1970; Comporti, 1965; Cooter, 1991).
This evolution was pursued through similar techniques in all western legal systems (mainly: the inversion of the burden of proof and the imposition of strict liability on producers and other professionals, the development of the precautionary principle in many fields of application etc.) and expanded the liability imposed on producers and other professionals to include cases in which the latter could not prove that the damage was not attributable to them, cases where there was scientific uncertainty as to the cause of the harmful effects or even cases where such cause was unknown (Faure et al., 2016; Montinaro, 2012).
The emergence of strict liability represented a mere incremental advancement of the same traditional paradigm of civil liability based on “deterrence”: here “fault” has been conceptually replaced by that of strict liability simply to increase deterrence even in cases where the fault could not be assessed positively in court, with the aim of inducing producers and other professionals to further increase investments in safety (Comporti, 1965). Legislation, however, appeared to keep considering civil liability for its potential of deterrence.
The same (mere) evolution may be observed in the adoption of further loss-spreading techniques as provision of mandatory insurance for producers and professionals. In fact, also in this case the traditional paradigm based on deterrence is held and legislation limits itself to reallocate the financial cost or compensation onto insurance companies – that, in turn, ascribe it to their client, also by raising applicable insurance premiums.