Damage Caused by Emotional AI: Do Existing and Prospective Liability Rules Provide Sufficient Protection?

Emotionally intelligent AI can process the most personal and intimate of information. When this is not handled with the utmost care, it can cause discrimination and stigmatization, violate a person’s privacy and it can cause other infringements of fundamental rights. This is particularly relevant in relationships with significant power asymmetry, such as that between an employer and an employee or a public authority and a citizen. In such cases, damage inflicted upon individuals is not tangible, meaning that it does not result in actual physical injury or damage to items of property, and often there is no consequential economic loss either. Still, the damage can cause serious distress to the affected person.

This chapter examines whether existing and prospective liability rules provide affected parties with sufficient protection. Relevant frameworks referenced will be the General Data Protection Regulation (GDPR), the AI Act, the proposed Directive on AI Liability and national civil liability laws of EU Member States. Special focus will be placed on the recoverability of immaterial harm. To date, many national laws—and courts—are reluctant to provide compensation for non-material harm. Therefore, the question is whether this reluctance is still appropriate considering the significant risks AI poses for fundamental rights and other immaterial interests.