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Navigating the opportunities and legal risks: exploring AI's impact on your businesses

Artificial Intelligence (AI) provides a whole range of new opportunities but also includes new and unique risks for companies, governments and individuals within society. These opportunities and legal risks involve ethical, legal and regulatory challenges.

At CMS we are keen to share our thoughts about AI and to add to the wider AI debate. CMS has a long history of advising companies large and small to leverage the benefits of new technology including AI developments whilst limiting the possible legal risks.

Visit local Artificial Intelligence Insight web pages and contact any of the partners listed for more information about our legal services related to AI.

Looking ahead to the EU AI Act
Learn about what companies should be aware of in order to prepare for the...

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15/03/2024
Next steps
Following the release of the pre-final text of the AI Act and its adoption by the European Parliament’s Internal Market and Civil Liberties Committees in February 2024, the torch was passed to the European Parliament plenary. Voting took place in the European Parliament on 13 March 2024 and approval was given by a large majority. The text is now being revised by the legal linguists of the European Parliament. The final text is then formally approved once again in the European Parliament. This is expected to take place on 10 / 11 April. This final text will then have to be approved by the Council of the European Union. A clear date for this has not yet been defined, but it can be assumed that this will happen soon after the final text has been approved by the European Parliament, most likely end of April/early May 2024. The AI Act will enter into force on the 20th day after publication in the EU Official Journal and will be applicable after 24 months. However, some specific provisions will have different application dates, such as prohibitions on AI, that will apply 6 months after entry into force; or General Purpose AI models already on the market, which are given a compliance deadline of 12 months. The AI Office was established on 21 February 2024 and the European Commission will oversee the issuance of at least 20 delegated acts. The AI Act’s implementation will be supported by an expert group formed to advise and assist the European Commission in avoiding overlaps with other EU regulations. Meanwhile, Member States must appoint at least one notifying authority and one market surveillance authority and communicate to the European Commission the identity of the competent authorities and the single point of contact. The next regulatory step appears to be focused on AI liability. On 14 December 2023, EU policymakers reached a political agreement on the amendment of the Product Liability Directive. This proposal aims to accommodate technological developments, notably covering digital products like software, including AI. The next proposal in line in the AI package is the Directive on the ad­apt­a­tion/har­mon­iz­a­tion of the rules on non-contractual civil liability to Artificial Intelligence (AI Liability Directive). Addressing issues of causality and fault related to AI systems, this directive proposal ensures that claimants can enforce appropriate remedies when suffering damages in fault-based scenarios. The draft was published on 28 September 2022 and is still pending to be considered by the European Parliament and Council of the European Union . Once adopted, EU Member States will be obliged to transpose its provisions into national law within a likely two-year timeframe. The enactment of the AI Act represents a pivotal step towards fostering a regulatory landscape, not only in the EU but worldwide, that balances innovation, trust, and accountability, ensuring that AI serves as driver of progress while safeguarding fundamental rights and societal values.
15/03/2024
Codes of conduct, confidentiality and penalties, delegation of power and...
Codes of conduct (Currently Title IX, Art. 69)In order to foster ethical and reliable AI systems and to increase AI literacy among those involved in the development, operation and use of AI, the new AI Act mandates the AI Office and Member States to promote the development of codes of conduct for non-high-risk AI systems. These codes of conduct, which should take into account available technical solutions and industry best practices, would promote voluntary compliance with some or all of the mandatory requirements that apply to high-risk AI systems. Such voluntary guidelines should be consistent with the EU values and fundamental rights and address issues such as transparency, accountability, fairness, privacy and data governance, and human oversight. Furthermore, to be effective, such codes of conduct should be based on clear objectives and key performance indicators to measure the achievement of these objectives. Codes of conduct may be developed by individual AI system providers, deployers, or organizations representing them and should be developed in an inclusive manner, involving relevant stakeholders such as business and civil society organisations, academia, etc. The  European Commission will assess the impact and effectiveness of the codes of conduct within two years of the AI Act entering into application, and every three years thereafter. The aim is to encourage the application of requirements for high-risk AI systems to non-high-risk AI systems, and possibly other additional requirements for such AI systems (including in relation to environmental sustainability).
14/03/2024
Governance and post-market monitoring, information sharing, market surveillance
Governance (Currently Title VI, Art. 55b-59)The AI Act establishes a governance framework under Title VI, with the scope of coordinating and supporting its application on a national level, as well as build capabilities at Union level and integrate stakeholders in the field of artificial intelligence. The measures related to governance will apply from 12 months following the entry into force of the AI Act. To develop Union expertise and capabilities, an AI Office is established within the Commission, having a strong link with the scientific community to support its work which includes the issuance of guidance; its establishment should not affect the powers and competences of national competent authorities, and bodies, offices and agencies of the Union in the supervision of AI systems. The newly proposed AI governance structure also includes the establishment of the European AI Board (AI Board), composed of one representative per Member State, designated for a period of 3 years. Its list of tasks has been extended and includes the collection and sharing of technical and regulatory expertise and best practices in the Member States, contributing to their harmonisation, and the assistance to the AI Office for the establishment and development of regulatory sandboxes with national authorities. Upon request of the Commission, the AI Board will issue recommendations and written opinions on any matter related to the implementation of the AI Act. The Board shall establish two standing sub-groups to provide a platform for cooperation and exchange among market surveillance authorities and notifying authorities on issues related to market surveillance and notified bodies. The final text of the AI Act also introduces two new advisory bodies. An advisory forum (Art. 58a) will be established to provide stakeholder input to the European Commission and the AI Board preparing opinions, recommendations and written contributions.A scientific panel of independent experts (Art. 58b) selected by the European Commission will provide technical advice and input to the AI Office and market surveillance authorities. The scientific panel will also be able to alert the AI Office of possible systemic risks at Union level. Member States may call upon experts of the scientific panel to support their enforcement activities under the AI Act and may be required to pay fees for the advice and support by the experts. Each Member State shall establish or designate at least one notifying authority and at least one market surveillance authority as national competent authorities for the purpose of the AI Act. Member States shall ensure that the national competent authority is provided with adequate technical, financial and human resources and infrastructure to fulfil their tasks effectively under this regulation, and satisfies an adequate level of cybersecurity measures. One market surveillance authority shall also be appointed by Member States to act as a single point of contact.
13/03/2024
General purpose AI models and measures in support of innovation
General purpose AI models (Currently Title VIIIA, Art. 52a-52e)The AI Act is founded on a risk based approach. This regulation, intended to be durable, initially wasn’t associated to the characteristics of any particular model or system, but to the risk associated with its intended use. This was the approach when the proposal of the AI Act was drafted and adopted by the European Commission on 22 April, 2021, when the proposal was discussed at the  Council of the European Union on 6 December, 2022. However, after the great global and historical success of generative AI tools in the months following the Commission’s proposal, the idea of regulating AI focusing only on its intended use seemed then insufficient. Then, in the 14 June 2023 draft, the concept of “foundation models” (much broader than generative AI) was introduced with associated regulation. During the negotiations in December 2023, some additional proposals were introduced regarding “very capable foundation models” and “general purpose AI systems built on foundation models and used at scale”. In the final version of the AI Act, there is no reference to “foundation models”, and instead the concept of “general purpose AI models and systems” was adopted. General Purpose AI models (Arts. 52a to 52e) are distinguished from general purpose AI systems (Arts. 28 and 63a). The General Purpose AI systems are based on General Purpose AI models: “when a general purpose AI model is integrated into or forms part of an AI system, this system should be considered a general purpose AI system” if it has the capability to serve a variety of purposes (Recital 60d). And, of course, General Purpose AI models are the result of the operation of AI systems that created them.“General purpose AI model” is defined in Article 3.44b as “an AI model (…) that displays significant generality and is capable to competently perform a wide range of distinct tasks regardless of the way the model is placed on the market and that can be integrated into a variety of downstream systems or applications”. The definition lacks quality (a model is “general purpose” if it “displays gen­er­al­ity”1Re­cit­al 60b contributes to clarify the concept saying that “generality” means the use of at least a billion of parameters, when the training of the model uses “a large amount of data using self-supervision at scale”. footnote) and has a remarkable capacity for expansion. Large generative AI models are an example of General Purpose AI models (Recital 60c). The obligations imposed to providers of General Purpose AI models are limited, provided that they don’t have systemic risk. Such obligations include (Art. 52c) (i) to draw up and keep up-to-date technical documentation (as described in Annex IXa) available to the national competent authorities, as well as to providers of AI systems who intend to integrate the General Purpose AI system in their AI systems, and (ii) to take some measures in order to respect EU copyright legislation, namely to put in place a policy to identify reservations of rights and to make publicly available a sufficiently detailed summary about the content used. Furthermore, they should have an authorised representative in the EU (Art. 52ca). The most important obligations are imposed in Article 52d to providers of General Purpose AI models with systemic risk. The definition of AI models with systemic risk is established in Article 52a in too broad and unsatisfactory terms: “high impact capabilities”. Fortunately, there is a presumption in Article 52a.2 that helps: “when the cumulative amount of compute used for its training measured in floating point operations (FLOPs) is greater than 10^25”. The main additional obligations imposed to General Purpose AI models with systemic risks are (i) to perform model evaluation (including adversarial testing), (ii) to assess and mitigate systemic risks at EU level, (iii), to document and report serious incidents and corrective measures, and (iv) to ensure an adequate level of cybersecurity. Finally, an “AI system” is “an AI system which is based on a General Purpose AI model, that has the capacity to serve a variety of purposes” (Art. 3.44e). If General Purpose AI systems can be used directly by deployers for at least one purpose that is classified as high-risk (Art. 57a and Art. 63a), an evaluation of compliance will need to be done.
13/03/2024
CMS Business Breakfast | Navigating the Future: AI and Digital Regulations...
CMS Business Breakfast
12/03/2024
Prohibited AI practices and high-risk AI systems
Prohibited Artificial Intelligence practices (Currently Title II, Art. 5) 1. Introduction to the unacceptable risk category Article 5 categorises certain AI technologies as posing an “unacceptable risk” (Unacceptable Risk). Unlike other risk categories outlined in the AI Act, the use of AI technologies that fall within this category is strictly prohibited ("Prohibited AI Systems"). It is therefore necessary to distinguish between:those technologies that are clearly prohibited; andthose AI applications that are not clearly prohibited but may involve similar risks. The most challenging problem in practice is to ensure that activities, which are not prohibited, do not become Unacceptable Risk activities and therefore prohibited. 2. Unacceptable Risk: Prohibited AI practices Article 5 explicitly bans harmful AI practices: The first prohibition under Article 5 addresses systems that manipulate individuals or exploit their vulnerabilities, leading to physical or psychological harm. Accordingly, it would be prohibited to place on the market, put into services or use in the EU:AI systems designed to deceive, coerce or influence human behaviour in harmful ways; andAI tools that prey on an individual’s weaknesses, exacerbating their vulnerabilities. The second prohibition covers AI systems that exploit these vulnerabilities, even if harm is not immediate. Examples include:AI tools that compromise user privacy by collecting sensitive data without consent; andAI algorithms that perpetuate bias or discrimination against certain groups. The third prohibition focuses on the use of AI for social scoring. Social scoring systems assign scores to individuals based on their behaviour, affecting access to services, employment or other opportunities. Prohibited practices in­clude:AI-driv­en scoring mechanisms that lack transparency, fairness or accountability; andSystems that discriminate based on protected characteristics (e.g. race, gender, religion). The fourth prohibition covers biometric real-time identification in publicly accessible spaces for law enforcement purposes. This includes:AI systems that identify individuals without their knowledge or consent; andContinuous monitoring of people’s movements using biometric data. 3. Clearly listed: Best practices and compliance Transparency and accountability are essential in complying with the prohibitions under Article 5. Firms using AI must design and continuously test systems, be transparent about their intensions and avoid manipulative practices. They should also disclose AI systems functionality, data usage, and decision-making processes. Companies should conduct thorough impact assessments to identify unintended vulnerabilities and implement specific safeguards to prevent exploitation. This should form part of assessments of AI systems to understand their impact on individuals and society. Companies should develop clear guidelines for scoring systems to prevent the development of social scoring characteristics, and prioritise ethical design, fairness and non-dis­crim­in­a­tion. Privacy impact assessments should be pursued to ensure compliance with the various prohibitions. In particular, firms should be very careful using any real-time identification systems. In all cases, companies should maintain comprehensive records of AI system design, training, and deployment. Any critical decision made by AI systems should be overseen by a human. 4. Not clearly listed: Categorisation Unacceptable Risk AI systems cover systems that are deemed inherently harmful and are considered a threat to human safety, livelihoods, and rights In contrast, high-risk AI systems cover systems designed to be applied to specific use cases, including using AI for hiring and recruitment that may cause harm but are not inherently harmful. High risk AI systems are legal, but subject to important requirements under the AI Act. It is therefore crucial to determine the difference between high risk and unacceptable risk AI systems. In essence, any high risk activity can escalate to Unacceptable Risk under the following cir­cum­stances:Bi­as and Discrimination: if AI perpetuates bias or discriminates against protected groups. Privacy Violations: when AI systems compromise user privacy or misuse sensitive data. Psychological Harm: if AI manipulates individuals, causing psychological distress. AI systems that are able to perform generally applicable functions and are able to have multiple intended and unintended purposes (being General Purpose AI models) are not inherently prohibited under the AI Act, but must be used with care since in certain scenarios they lead to Unacceptable Risk activities. To assess whether a General Purpose AI Model poses an Unacceptable Risk, it is necessary to consider the context in which the model operates. If it influences critical decisions (e.g. hiring, credit scoring), perpetuates bias or discriminates, compromises user privacy (e.g. by collecting sensitive data without consent), the risk increases, and the model may need to be adapted. 5. Best practice and compliance While the AI Act provides examples of explicit prohibitions under the AI Act, it cannot cover all possible situations as the technology is, through updated versions and by definition, constantly evolving. As a guide, legal and compliance teams should ask the following questions when considering high- risk AI systems:Risk assessment:What is the evidence that the categorisation of the AI application is minimal, limited, high or Unacceptable Risk?Does the application in any circumstances use or act on sensitive data or influence critical de­cisions?Con­tex­tu­al analysis:Does the application operate in a sector that has a presumption of increased risk, for example, (a) financial services, or (b) healthcare?In what ways does the deployment of the application impact (a) individuals, and (b) society?Specific criteria:Can any decisions of the application be considered to give rise to manipulation, exploitation, discriminatory scoring, or biometric iden­ti­fic­a­tion?Does the application operate or have access to data that could give rise to the exploitation of subliminal techniques or vulnerabilities related to protracted characteristics, such as age or dis­ab­il­ity?Trans­par­ency and Documentation:In what ways is the AI system transparent about its inherent functioning and de­cision-mak­ing?In what ways does the user’s documentation of the design, training and deployment of the application demonstrate compliance with the various rules? 6. Conclusion Unacceptable Risk AI activities are those practices that pose inherent harm to people and are strictly forbidden under the AI Act. The potential for reputational damage and regulatory sanctions serve as strong deterrents for firms to avoid breaching these provisions of the AI Act. It is essential for companies to take proactive measures to ensure compliance and prevent harm to individuals and society.
11/03/2024
Looking ahead to the EU AI Act
Introduction The European Union is preparing for the imminent adoption of the world’s most significant legislation on Artificial Intelligence, solidifying its position as a pioneer among global legislators. This initiative aims to establish and reinforce the EU’s role as a premier hub for AI while ensuring that AI development remains focused on human-centered and trustworthy principles. To expedite the achievement of these goals, on 8 December 2023, after three days of debate, the European Parliament and the Council of the European Union finally reached a provisional agreement on the “Proposal for a Regulation laying down harmonised rules on artificial intelligence” (the so-called AI Act), which aims to ensure that AI systems placed on the European market are safe and respect the fundamental rights and values of the EU. Subsequent to this provisional agreement, technical refinement of the AI Act continued to finalise the regulation’s details and text. The final vote of the European Parliament on the AI Act will take place at 13 March 2024. Since the European Parliament's Committees on the Internal Market and Consumer Protection (IMCO) and on Civil Liberties, Justice and Home Affairs (LIBE) have endorsed overwhelmingly the proposed text, the approval of the European Parliament can be expected. After a long and complex journey that began in 2021 with the European Commission’s proposal of a draft AI Act, this new regulation is expected to be passed into law in spring 2024, once it has been approved by the European Parliament and the Council of the European Union . The AI Act aims to ensure that the marketing and use of AI systems and their outputs in the EU are consistent with fundamental rights under EU law, such as privacy, democracy, the rule of law and environmental sustainability. Adopting a dual approach, it outright prohibits AI systems deemed to pose unacceptable risks while imposing regulatory obligations on other AI systems and their outputs. The new regulation, which also aims to strike a fair balance between innovation and the protection of individuals, not only makes Europe a world leader in the regulation of this new technology, but also endeavours to create a legal framework that users of AI technologies will be able to comply with in order to make the most of this significant development opportunity. In this article we provide a first overview of the key points contained in the text of the AI Act1This article (including the relevant citations below) is based on the latest draft available on the Council’s website. The AI Act remains subject to possible further refinement, but not as regards content, and the text referred to for this article should be considered as the closest to the one that will be voted on by the EU Parliament. footnote that companies should be aware of in order to prepare for the implementing regulation.
23/01/2024
CMS Funds Group AI & Tech interviews
This series of interviews focuses on the meaning of digitalisation, digital services and tokenisation within the funds sector, leveraging off the experience of various players in the ecosystem.
17/01/2024
Hungarian Competition Authority launches study on impact of AI on competition...
On the eve of the European Commission’s calls for contributions on competition in virtual words and generative AI, the Hungarian Competition Authority (HCA) announced that it is launching a market analysis...
16/01/2024
Digital Legacy - How will future generations be shaped by the actions of...
Fireside chat with two Top Industry Veterans - Lucy Lombardi and Nicola Palmer
22/12/2023
AI Act: Council and Parliament reach political deal
After lengthy negotiations, a political deal has been reached on the AI Act. This blog provides an overview of the current situation.There has been a gap of over two years between the world's first legal...
19/12/2023
Hungary’s financial regulator reviews risk of AI to banks and insurance...
For the first time, the Hungarian National Bank (MNB) carried out a thematic study on the IT, privacy and other risks of AI and machine learning in banks and insurance companies.The objective of the study...