MALTA Law and Practice Contributed by: Andrew J Zammit, James Bartolo and Nicholas Scerri, GVZH Advocates
• human autonomy – humans interacting with AI systems must be able to keep full and effective self-determination over themselves; • preventing harm – AI systems must not cause harm at any stage of their life cycle to humans, the natural environment, or other living beings; • fairness – the development, deployment, use and operation of AI systems must be fair; and • explicability – end users and other members of the public should be able to understand and challenge the operation of AI systems as required for the particular use case. Malta has set up a national AI Certification Pro - gramme, based on the Framework. Certification would provide applicants with acknowledge - ment that their AI system has been developed in an ethically aligned, transparent and socially responsible manner, in line with the principles and control practices established by the Frame - work. Liability Liability is often an issue when it comes to ML and AI technologies. It is not easy to establish who or what is legally responsible for the non- human decision-making of a machine. The mat - ter becomes more complicated if the hardware and software performed precisely as they were intended and without a perceptible defect or malfunction of any kind. Malta does not have a dedicated legal framework to govern liability issues relating to ML and AI per se; however, a patchwork of legal provisions addresses the matter to a significant extent. Under the Maltese law of obligations, specifically the Maltese Civil Code (Chapter 16, Laws of Malta), one finds the general concept that a person should always show reasonable care in all their actions, and the standard of reasonable care which is required is that of a reasonable man (bonus paterfamil -
ias). The corollary is that a person who causes harm by acting in a manner which falls below this standard would be liable to compensate for such harm. Another relevant provision under the Civil Code provides that the owner of an animal, or any per - son using an animal during the time that such person is using it, is liable for any damage caused by it, whether the animal was under their charge or had strayed or escaped. With regard to this latter provision, academic writers have drawn a parallel with this situation and one where an AI system behaves disruptively or uncontrollably, stating that such provisions should be used in such a case. Furthermore, in September 2022 the European Commission released the proposal for an AI Lia - bility Directive. The directive seeks to provide legal certainty and address concerns surround - ing liability, compensation and accountability. It focuses on clarifying liability issues related to AI systems such as determining who is responsi - ble in cases where AI systems cause harm or damage. This directive could potentially play a pivotal role in Malta when determining liability when there has been the use of AI and ML. On a final note, the Product Liability Directive (Directive 85/374/EEC) was transposed into Mal - tese law through part of the Consumer Affairs Act (Chapter 378 of the Laws of Malta), which brings into effect the concept of strict (no fault) liability into the product liability regime, subject to the limitations of the Product Liability Directive itself. Under the Product Safety Act, a product is safe if it meets all statutory safety require - ments under European or national law (or in default thereof, Commission recommendations and codes of practice), and any distributor who supplies products which they should know to be
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