ABSTRACT
The AI Liability Directive Proposal (AILD) includes a right for victims of harm of so-called high-risk AI systems to request that evidence be disclosed. An important limit to this right is the protection of trade secrets. In the context of a trial, business secrecy may act as a barrier to evidence, potentially precluding litigants from effectively making their views known before a court. Based on an analysis of the evidentiary needs flagged by litigants in the emerging (global) AI liability caselaw, as well as the caselaw of the EU courts on the impact of confidential information on the right to effective judicial protection, this article examines if the provisions of the AILD, as well as those of the GDPR and the AI Act afford sufficient procedural abilities allowing litigants to meaningfully participate in judicial proceedings, in spite of relevant items of information being withheld due to trade secrecy.
Grozdanovski, Ljupcho, My AI, My Code, My Secret (2024).
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