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Regulation of Artificial Intelligence in Europe and Japan

AI regulation in the EU

In 2019, the European Commission published Ethical Guidelines for Trustworthy AI in order to instruct businesses and the public about their expectations concerning the proper development and use of AI.  The Guidelines, together with the General Data Protection Regulation, place the EU once again in the position of setting high standards for those who wish to do business in the EU and perhaps globally. 

The principles include:

• Human agency and oversight³
• Robustness and safety⁴
• Privacy and data governance⁵
• Transparency⁶
• Diversity, non-discrimination and fairness⁷
• Societal and environmental well-being⁸ and
• Accountability⁹

The EU Guidelines include a pilot Trustworthy Assessment List for use by companies when developing AI systems. It is important to note that the Guidelines do not include any legally binding mandates for the moment but the European Commission has indicated that it will review this position in 2020.¹⁰

The challenge in the EU is that there is no single system of regulation that covers AI. Instead, there are various laws that are applicable (or potentially applicable) to the development and implementation of AI technologies. These laws include but are not limited to intellectual property law, data protection law, consumer protection or product liability laws, computer misuse laws, and human rights laws.

In February 2020, the European Commission released a White Paper on AI.¹¹ Releasing a White Paper is a common first step in the preparation of EU legislation. The purpose of the AI White Paper is to seek input and proposals on the development of a common EU framework for the regulation of AI. However, it is not unusual for the final legislation to look very different to the initial White Paper. The AI White Paper notes that a number of EU Member States have adopted inconsistent approaches to AI regulation at a national level.

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AI regulation in Japan

1)    Japanese laws

a)    Social Principles of Human-centric AI¹²

Similar to the experience in Europe, there is no comprehensive regulation of AI in Japan at this time.¹³Nevertheless, a number of existing laws are applicable to AI including the Constitution and laws pertaining to contracts, torts, certain economic statutes, intellectual property, personal data, privacy and the criminal code. While there is debate as to whether the current legal framework is suitable for the future development of AI (as described in more detail below), the Cabinet Office and various ministries have sought to influence AI by promulgating various strategies and guidelines. 

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