Lavy: English law can rise to the challenge
Lawyers and other professionals can be sued for negligence for failing to use artificial intelligence (AI), according to the latest legal statement from the UK Jurisdiction Taskforce (UKJT).
The UKTJ also gave examples of where professionals could be liable for lack of “reasonable care and skill” in their use of AI, such as failing to carry out proper due diligence, failing to explain to clients how AI was being used or failing to check output for errors and biases.
The UKTJ said its previous legal statements, on cryptoassets and smart contracts, had been “adopted directly by English judges” and were relied on by international investors choosing English law for technology transactions.
It has concluded that existing English law already provides the legal framework needed to resolve most AI liability disputes and no new legislation was required.
In its Legal Statement on Liability for AI Harms, the taskforce said: “Whether there is a breach of duty in failing to use AI will, of course, be judged according to whether a reasonable professional of a comparable rank/specialism should have used AI in that context.
“That will, again, turn upon professional bodies’ regulations and/or guidance (if any) and on the expert evidence as to the actions of competent professionals in the field.
“The possibility of breaches of duty arising from a failure to use AI reflects the fact that AI, in a professional’s hands, is a tool. The question of whether such a tool should be used, and, if so, how, is no different from that which arises in respect of any other tool available to a professional.”
As an example of when a lawyer could be liable for failing to use AI, the UKTJ cited “a solicitor in the Business and Property Courts failing to advise their client that it may wish to consider some form of AI-assisted tool in order to review large volumes of documents”.
Turning to when professionals were likely to be liable for a lack of reasonable care and skill when using AI, the taskforce gave the example of “failing to conduct proper due diligence on an AI system before using it for client work, particularly if the system is new, innovative, or from an untested provider”.
Professionals must be able to “explain (at a minimum, in broad terms)” to their clients how the AI they are intending to use works.
A solicitor “putting their client’s confidential or privileged information into an AI system which is not suitably secure and confidential is highly likely to be a breach of duty to their client”.
A professional should also “ensure that there has been sufficient testing of the AI system to check that it is suitable and appropriate for the task envisaged”.
Any professional who “fails to exercise oversight of the AI system’s outputs is likely to be found negligent” and oversight “may require the professional to identify and address the risk of errors and/or biases in an AI system”.
The UKTJ said that professionals could be liable for information produced by chatbots, and liability “would generally be established if a legal person held out the AI chatbot as communicating on their behalf, or if there is an express or implied representation that the chatbot’s statements are correct”.
As yet, however, there was no English authority “on the question of whether an AI can make a statement ‘on behalf’ of a legal person”, although a Canadian court had held an airline liable for false statements by its chatbot.
Matthew Lavy KC, chair of the UKTJ’s drafting committee, commented: “We have reached the view that providing remedies for AI harms does not require a new liability regime, and that English law’s existing approach to legal liability already provides a coherent framework for analysing where responsibility should fall.
“While some factual scenarios may throw up difficulties, English law has long been capable of rising to the challenges of novel technologies, and we consider that it will be able to do so in relation to AI.”
Sir Geoffrey Vos, Master of the Rolls, said in his foreword to the legal statement: “Since the advent of generative AI in 2022, lawyers and users of AI alike have expressed concern about when and whether large language model developers and others involved in the AI supply chain might be liable for harms caused by AI.
“This legal statement attempts to provide much needed legal certainty and legal predictability in an area where few cases have yet reached the courts.”
He added: “I believe the legal statement will be of inestimable value to the legal community, the technological community, and users in a time of rapid development in both the capability and usage of generative AI.”
Leave a Comment