Key strategic documents from the European Commission on data and AI—the European data strategy and Excellence and trust in artificial intelligence—were recently released for public consultation. They present a European vision for a new model of the economy.

According to these documents, the new model of the economy is to be founded on principles vital for European values, particularly human dignity and trust. This aspect should be stressed, as the European Union clearly is becoming the global leader in thinking about new technologies in light of humanistic values. This is a unique approach, but also entails several dilemmas. In adopting this approach, the EU risks eroding its competitive advantages, at least in the short-term perspective. Most likely, AI technologies will develop faster in places where their growth is not restrained by ethical doubts. The Commission thus proposes an ambitious but also risky approach.

The European vision deliberately stands apart from the American model, where the data space has been ceded to the market, leading to dangerous monopolisation of this space by a few huge corporations. Europe also clearly wants to avoid the Chinese model, too strongly dominated by state control.

The Commission documents present a multi-layered strategy. They call for express financial support for data science projects and increasing the educational potential in this area. From our perspective, the most interesting are the passages of the documents allowing us to anticipate the shape of the future European legal framework for AI and the data economy.

The Commission calls for creation of a shared European data space, where four key models for management of data will be developed: Governance-to-Business, Business-to-Business, Business-to-Governance, and Governance-to-Governance. The documents also allude to interesting models of managing data such as edge computing and data-sharing models. Movements such as MyData are also mentioned, which would vest control over data in the data subjects themselves. This also creates an opportunity for the demands of these movements to be reflected in the future European model.

Encouragingly, the Commission mentioned in several places the potential of blockchain technology in the context of the data economy. The report recognises its potential for creating tools for secure, autonomous management of data in a decentralised model (such as edge computing). In light of these strategic documents, various projects may be expected in the upcoming years seeking to realise this potential.

With respect to ideas for regulating AI, the documents call for distinctions between algorithms according to the systemic risks they can generate. The highest-risk algorithms are to be subjected to rigorous oversight. The document enumerates the areas to be supervised, calling among other things for verification of data used for teaching algorithms, appropriate documentation of development of algorithms, compliance with informational obligations, and ensuring human oversight.

The need has also been signalled for introducing a system for evaluating the compliance of mechanisms assessing the safety of algorithms. In light of machine-learning mechanisms, the evaluation process must also be to some degree permanent, to ensure that systems are also evaluated as they change.

The documents stress that SMEs also must have access to the tools of the new economy. They also point to the negative environmental impacts of the ICT sector. Thus an element of the European strategy will be to ensure that the infrastructure of the data-based economy becomes more environment-friendly.

These documents are an important step in developing a coherent European approach to the data economy. But they only address a portion of the challenges connected with the new economy. From a legal perspective, the challenges appear in three main areas: the legal status of data, civil-law aspects of automated turnover, and oversight of algorithms. These documents address the last of these issues to the greatest degree, outlining a concept for supervising algorithms. But they present only general conceptions of an approach to the legal status of data, without taking a clear stand in favour of any of them.

How algorithms should be governed under civil law was ignored completely. This is a vital issue in practice. Thanks to their growing autonomy, algorithms require us to rethink key issues of civil law, such as expressions of will, liability, and legal personhood. Given the autonomy exercised by the member states in the area of civil law, these issues will have to be the subject of deeper reflections across the individual member states. The success of the Commission’s ambitious plans for the European data economy depend on whether a coherent approach to these three key areas of law can be developed.

Krzysztof Wojdyło