Artificial Intelligence in law | CCBE comments on a white paper by the European Commission

The Council of Bars and Law Societies of Europe (CCBE) responded to a white paper by the European Commission on artificial intelligence (AI) that was consulted.

The organisation is concerned that questionnaire of the Commission has not been tailored to specific sectors and use cases, and did not offer respondents the opportunity to indicate per question from which perspective the reply is given. Many of the questions were leading questions offering only a closed set of options as a result of which it is impossible to express a meaningful opinion.

The CCBE has limited the scope of its response to mainly aspects related to the rule of law, administration of justice and fundamental rights and has addressed certain liability issues as well as training needs for lawyers and law firms regarding the use of AI in legal practice.

Their response includes comments on an ecosystem of trust that is needed:

o Artificial intelligence and human rights: virtually all human rights can be affected by the use of AI systems. Various actions are therefore needed, amongst which: thorough assessments of the effect of AI systems; independent and expert scrutiny; transparency on the use of AI; ensuring the availability of remedies; new legal frameworks to codify the principles and requirements governing the use of AI, in conjunction with voluntary ethics codes committing AI developers to act responsibly.

o As an alternative to the proposed risk-based approach, the CCBE calls for a more targeted approach which sets legal requirements tailored to the needs of the specific sectors and circumstances after a more detailed evaluation of risks and assessment of legal or other appropriate measures.

o The use of AI by courts and in criminal justice systems is a high risk as it undermines many of the foundations on which justice is based. Any deployment of such tools should therefore be preceded by in-depth evaluation and impact assessments with the involvement of all relevant actors and stakeholders and be strictly regulated taking into account the procedural architecture underpinning judicial proceedings. In any case, a right to a human judge should be guaranteed at any stage of the proceedings.

o A combination of ex-ante compliance and ex-post enforcement mechanisms is needed on the basis of a set of mandatory requirements.

 

More information:
CCBE Response (pdf) to the consultation on the European Commission’s White Paper on Artificial Intelligence of 5 June 2020

 


Addition 16 June 2020
CNUE, the European organisation of notaries also commented on AI. Read also the KNB article, CNUE: ‘Kunstmatige intelligentie mag het vak notaris niet verstoren’ (Dutch).

Addition 17 December 2020
The European Parliament on 10 December published a press release: Artificial Intelligence: guidelines for military and non-military use. Regarding justice:

AI in healthcare and justice

The increased use of AI systems in public services, especially healthcare and justice, should not replace human contact or lead to discrimination, MEPs assert. (…)

Judges use AI technologies more and more in decision-making and to speed up proceedings. However, safeguards need to be introduced to protect the interests of citizens. People should always be informed if they are subject to a decision based on AI and should have the right to see a public official. AI cannot replace humans to pass sentences. Final court decisions must be taken by humans, be strictly verified by a person and be subject to due process.

MEPs also warn of threats to fundamental human rights arising from the use of AI technologies in mass surveillance, both in the civil and military domains. They call for a ban on “highly intrusive social scoring applications” (for monitoring and rating of citizens) by public authorities.

On 8 December another press release by the European Parliament was published: MEPs want legally sound solutions for obtaining e-evidence in cross border cases.

Over Ellen Timmer, advocaat ondernemingsrecht @Pellicaan

Verbonden aan Pellicaan Advocaten, http://www.pellicaan.nl/, kantoor Rotterdam, telefoon 088-6272287, fax 088-6272280, e-mail ellen.timmer@pellicaan.nl ||| Weblogs: algemeen: https://ellentimmer.com/ || modernisering ondernemingsrecht: http://flexbv.wordpress.com/ ||| Motto: goede bedoelingen rechtvaardigen geen slechte regels
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