Category: AI Regulation & Policy

  • California’s SB 37: Your AI Chatbot Is Your Ad. You Own it. Act Like It.

    California’s SB 37: Your AI Chatbot Is Your Ad. You Own it. Act Like It.

    This is educational material and does not constitute legal advice nor is any attorney/client relationship created with this article, hence you should contact and engage an attorney if you have any legal questions.


    California’s SB 37 took effect January 1, 2026, and if you’re a California attorney with an AI chatbot on your website, you’re already in the highest-risk category under the new law.

    SB 37 is about attorney responsibility in outsourced influence. It doesn’t matter whether your marketing vendor wrote it, your intake platform generated it, or your chatbot spit it out.

    If it markets your firm, you own it.

    The chatbot problem most attorneys haven’t thought through

    AI chatbots on law firm websites sit at the intersection of two distinct compliance obligations, and most attorneys are only thinking about one of them.

    The first is SB 37: your chatbot’s responses are advertising. They need to comply with California’s attorney advertising rules, so no misleading claims, no implied guarantees, proper identification of a responsible California-licensed attorney.

    The second is privilege. This one is urgent right now, because of a case that just dropped two weeks ago.

    In United States v. Heppner (SDNY, Feb. 17, 2026), Judge Rakoff held that a criminal defendant’s conversations with the consumer version of Claude — used independently, without attorney direction — were not protected by attorney-client privilege or the work product doctrine. The reasoning: Claude isn’t a lawyer, and Anthropic’s consumer ToS expressly permits review and disclosure of user inputs. No confidentiality, no privilege. (Beyond the ruling’s text, I should clarify that this is almost certainly true even if training is toggled off, and even on paid consumer plans. Only enterprise plans, and even then, optimally, with ZDR policies in place, are sufficiently safe not to waive privilege.)

    While this is obviously a NY-only ruling for the moment, it stands to reason that other states will follow suit. So that ruling has a direct implication for your intake chatbot. If a prospective client starts describing their legal situation to your AI chatbot before they’ve engaged you, that conversation may be discoverable. Likewise, if your client — or potential client — use an AI chat bot powered by a consumer-tier AI with permissive data handling terms, you’ve compounded the problem.

    How I implemented live chat on my site

    I recently set up a live chat tool (Crisp.chat if you’re curious; one nice thing, they’re EU-based in France so it makes GDPR compliance a breeze) for my own law practice website — not an AI bot, just a standard live chat widget — and I set it to auto-open on the first page load with this:

    “Please do NOT share any private or otherwise confidential information here as there is no attorney/client privilege between us unless and until we sign an Engagement Letter. In the meantime, please do NOT discuss any legal issues with a public AI tool like ChatGPT, Claude, Grok, Gemini, etc., as this may waive any attorney/client privilege that might otherwise exist between us.”

    That’s not legalese for its own sake. It’s a direct response to Heppner and to the data handling realities that SB 37 now forces you to confront.

    For the record, I have mixed feelings on the direction the law is trending:

    First, although I agree with the technical reality that an AI chat both is entirely different to a cloud storage provider, I question the practical reality, and thus, whether it should be considered a third party disclosure.

    And second, I find it exceedingly hard to reconcile the recognition that more than 1 billion people world wide now use ChatGPT for discussing their most private, personal, and confidential matters, while we steadfastly maintain that there is no expectation of privacy in such discussions. These two conclusions seem absolutely, undeniably, mutually exclusive to me.

    A practical checklist

    Before your next client intake conversation happens through your website chatbot — whether it’s an AI bot or simple “dumb chat box,” ask yourself:

    • Does my chatbot identify a responsible California-licensed attorney?
    • Are its responses reviewed by an attorney before going live?
    • Do I know where those conversations are being sent and stored?
    • Am I warning visitors not to share privileged information?
    • If it’s AI-powered, what are the underlying platform’s data retention and disclosure terms?

    If you can’t answer all five confidently, you have work to do.

  • AI Deepfakes, Defamation, and the Limits of Prevention

    AI Deepfakes, Defamation, and the Limits of Prevention

    This is educational material and does not constitute legal advice nor is any attorney/client relationship created with this article, hence you should contact and engage an attorney if you have any legal questions.


    What happens when we accept that we can’t actually prevent deepfakes?

    I’ve been thinking about this a lot lately, and I’ve come to a conclusion that I suspect will be controversial, though I think it’s nevertheless logical, if not fair.

    The patchwork problem

    As of early 2026, the legal landscape around deepfakes is a sprawling patchwork. Nearly every state has enacted some form of deepfake legislation. Federal laws like the TAKE IT DOWN Act and the DEFIANCE Act target nonconsensual intimate deepfakes. California has enacted a suite of laws protecting performers’ digital likenesses and mandating AI provenance disclosures.

    These are all important steps. But notice what they have in common: they’re almost entirely focused on specific use cases— nonconsensual pornography, election manipulation, commercial exploitation of performers. They’re reactive, categorical, and narrow. They address particular symptoms of a much broader underlying problem.

    The broader problem is this: somebody can fabricate a video of you doing or saying something you never did or said, present it as real, and destroy your reputation. And no existing legal framework cleanly addresses that fundamental harm across all contexts.

    Why defamation is the right framework

    Consider what a malicious deepfake actually is. It’s not presented as opinion. It’s not presented as satire. It’s presented as a statement of fact. Here’s this person. That’s her face. Here’s what she’s doing. Here’s what she’s saying. The entire premise depends on the viewer believing it’s real.

    That’s a false statement of fact presented to the world as truth. That’s defamation.

    The elements map remarkably well. Defamation requires (a) a false statement of fact, (b) published to a third party, (c) with the requisite degree of fault, and (d) causing harm. And defamation per se doesn’t even require any demonstration of harm at all if the defamation targets certain classes of statements, e.g., one’s health history, confidential relationship information, or career reputation.

    One objection worth addressing: defamation traditionally requires a human publisher making a statement. But the creator of a deepfake is the publisher — they fabricated the depiction and distributed it. That’s the statement. Whether it constitutes slander or libel is a secondary question, but the core defamation analysis holds. A malicious deepfake satisfies every element. The creator necessarily knows the content is false — fault is built in. And harm — reputational, emotional, financial — is often catastrophic and irreversible.

    There’s a feature of deepfakes that actually strengthens the defamation argument, particularly for public figures. Under New York Times Co. v. Sullivan, public figures must prove “actual malice” — that the publisher knew the statement was false or acted with reckless disregard for its truth. With deepfakes, this hurdle essentially vanishes. The creator necessarily knows the content is false, because they fabricated it. Actual malice is baked into the act of creation.

    Prevention is a fantasy

    Like it or not, we’re now living in an AI world. The tools to create convincing deepfakes are essentially free, widely available, and improving at a rate that outpaces every detection technology we’ve developed, to speak nothing of the law’s molasses pace in keeping up.

    Legislation requiring watermarking, provenance disclosures, and platform takedowns are all valuable — but they’re speed bumps, not walls. You cannot prevent someone from creating a deepfake of you any more than you can prevent someone from lying about you.

    Celebrities face a particular version of this reality. Public figures have, by definition, put themselves in the public eye. If your image and likeness are already pervasive — across the internet, across social media, across every camera and screen — the practical reality is that your digital likeness will be misappropriated by AI tools. That’s not a moral judgment. It’s a recognition of the threat landscape. Just as the ubiquity of smartphones fundamentally changed our expectations around being photographed in public, the ubiquity of generative AI is fundamentally changing our expectations around the integrity of digital media.

    To be absolutely clear: I am not saying deepfakes are acceptable. I am not saying celebrities deserve what they get. I am saying that the law’s energy is better spent building a robust system of accountability after the fact than chasing in vain the impossible goal of prevention before the fact. Stop trying to build a wall. Build a better courthouse.

    Where existing frameworks fall short

    This is why the defamation framing matters so much.

    Right of publicity protects against commercial misappropriation of likeness. It’s powerful in the entertainment context. But it’s fundamentally a commercial doctrine. If someone creates a deepfake of you to destroy your reputation rather than to make money, right of publicity doesn’t cleanly apply.

    Criminal statutes address specific categories of harm — nonconsensual intimate imagery, election interference, fraud. They’re essential but fall into limited, discrete categories. A deepfake that puts fabricated political statements in your mouth, or depicts you in a compromising but non-sexual scenario, may fall through the cracks.

    Copyright protects the creator of content, not the person depicted. If someone deepfakes you, you don’t own that video — and your own image isn’t copyrightable. That’s a gap worth closing, but it’s a legislative fix, not a remedy available today.

    Defamation fills the gap. It addresses the core dignitary harm — the injury to reputation caused by the presentation of fabricated content as fact — regardless of whether the motive is commercial, sexual, political, or purely malicious. And it’s available to everyone, not just celebrities or performers.

    The road ahead

    Defamation isn’t a silver bullet. Identifying anonymous deepfake creators is extraordinarily difficult. Damages may be modest. And defamation’s speech-protective doctrines will require careful application in the deepfake context, even if the actual malice hurdle is lower than usual.

    But here’s what defamation offers that no other framework does: a universal, flexible, well-established cause of action that addresses the fundamental harm of deepfakes — the presentation of fabricated content as fact — and crucially, not opinion — causing reputational injury. It doesn’t require new legislation. It doesn’t require categorical definitions of prohibited conduct. It asks a simple question: Did someone present a fabrication as fact, and did it cause harm?

    The law doesn’t need to reinvent itself every time technology evolves. Sometimes, the frameworks we already have are the right ones — they just need to be applied to new facts. Defamation has been doing this work for centuries. It’s time to let it do this work too.


    These are exactly the kinds of issues I think about every day at Hoag Law.ai and as Chair of the Beverly Hills Bar Association’s AI and the Law Section, alongside Vice-Chair Amanda Harris. If you’re navigating AI compliance, deepfake risk, or the broader intersection of technology and law, let’s talk.

  • Everything you need to know about California’s new AI romance bill

    Everything you need to know about California’s new AI romance bill

    In era where artificial intelligence is weaving itself into the fabric of daily life, California has taken a bold step forward with Senate Bill 243 (SB 243). Fast on the heels of California’s first-in-nation AI law, SB53, and signed into law by Governor Gavin Newsom on October 13, 2025, this legislation marks the nation’s first targeted regulation of AI-powered companion chatbots, aiming to shield users — particularly minors — from potential mental health risks and emotional harms. With tragic incidents highlighting the dark side of unregulated AI interactions, SB 243 introduces mandatory disclosures, safety protocols, and reporting requirements to ensure these digital companions don’t exacerbate issues like suicidal ideation or dependency.

    The Rise of Companion Chatbots and the Need for Regulation

    Companion chatbots, such as those powered by models like ChatGPT (which, according to OpenAI CEO Sam Altman, is soon to be fully unlocked to allow “erotic” interactions) and xAI’s Grok, are designed to simulate human-like conversations, offering adaptive responses that can fulfill social needs and sustain relationships over multiple interactions. 

    These tools have exploded in popularity, providing everything from casual chit-chat to emotional support. However, their anthropomorphic qualities — mimicking empathy, humor, and personality — can blur the line between machine and human, leading to unintended consequences.

    The impetus for SB 243 stems from harrowing real-world cases. For instance, the suicide of 14-year-old Sewell Setzer in Florida was linked to interactions with a chatbot that inadequately responded to his expressions of distress and even encouraged harmful thoughts. Similarly, California teen Adam Raine’s death was allegedly influenced by a chatbot’s encouragement of self-harm. Reports have also surfaced of chatbots engaging in inappropriate “sensual” dialogues with children or failing to detect suicidal ideation, prompting concerns from child safety advocates and experts. 

    Senator Steve Padilla, the bill’s author, emphasized that while AI can be a powerful educational tool, the tech industry’s incentives often prioritize user engagement over well-being, potentially at the cost of children’s real-world relationships and mental health. SB 243 addresses these gaps by mandating safeguards, building on existing laws like those combating cyberbullying and supporting suicide prevention efforts through the state’s Office of Suicide Prevention.

    Key Provisions of SB 243

    SB 243 adds Chapter 22.6 to California’s Business and Professions Code, defining and regulating “companion chatbots” while excluding benign uses like customer service bots or video game features. Here’s a breakdown of its core requirements for operators (companies making these platforms available to California users):

    1. Transparency and Disclosures

    • If a chatbot could mislead a reasonable person into thinking they’re talking to a human, operators must provide a clear and conspicuous notification that it’s AI-generated.
    • For all users, platforms must disclose that companion chatbots may not be suitable for some minors, displayed prominently on apps, browsers, or other access points.

    2. Protections for Minors

    • Operators must disclose to known minor users that they’re interacting with AI.
    • During extended interactions, minors receive automatic reminders every three hours to take a break and reaffirm that the chatbot is not human.
    • Reasonable measures must prevent chatbots from generating sexually explicit visual material or encouraging minors to engage in such conduct.

    3. Mental Health Safeguards

    • Operators cannot allow chatbot engagement without a published protocol to prevent content promoting suicidal ideation, suicide, or self-harm. This includes referring users to crisis services like suicide hotlines if such topics arise.
    • Protocols must be detailed on the operator’s website, using evidence-based methods to detect and respond to these risks.

    4. Reporting and Accountability

    • Starting July 1, 2027, operators must submit annual reports to the Office of Suicide Prevention, detailing crisis referrals, detection protocols, and prohibitions on harmful responses, without including personal user data.
    • The office will publicly post this data, fostering transparency and ongoing monitoring.

    The law takes effect on January 1, 2026, giving companies time to comply. Noncompliance opens the door to civil actions, where affected individuals can seek injunctive relief, damages (at least $1,000 per violation), and attorney fees. 

    Implications for Tech Companies, Users, and AI Regulation

    For tech giants like OpenAI and Meta, SB 243 means retooling platforms to include robust monitoring and referral systems, potentially increasing operational costs but also setting a precedent for ethical AI design. 

    The Computer and Communications Industry Association, initially opposed, ultimately supported the bill after amendments, viewing it as a balanced approach to child safety without banning AI outright. 

    However, some advocates, like Common Sense Media, criticized it for not going far enough, preferring stricter measures in related bills like AB 1064. 

    Users, especially parents and minors, gain peace of mind through enforced transparency and harm prevention. 

    Experts like UC Berkeley’s Jodi Halpern hail it as a critical step against addictive dependencies and public health risks.

    Broader implications position California as a leader in AI governance, complementing other 2025 laws on privacy and child protections, and potentially influencing federal policies amid FTC investigations into chatbot harms. 

    Conclusion: A Foundation for Safer AI Interactions

    SB 243 isn’t just legislation, it’s a response to the human cost of unchecked innovation. As Senator Padilla noted, it establishes “the bedrock for further regulation as this technology develops.” By prioritizing mental health and accountability, California is charting a path toward AI that enhances lives without exploiting vulnerabilities. As we integrate more AI into our social spheres, laws like this remind us: technology should serve humanity, not the other way around.

  • Everything you need to know about California’s new AI law

    Everything you need to know about California’s new AI law

    This is educational material and does not constitute legal advice nor is any attorney/client relationship created with this article, hence you should contact and engage an attorney if you have any legal questions.


    SB 53 Overview

    On September 29, 2025, California became the first U.S. state to establish binding safety requirements for frontier artificial intelligence systems. Governor Gavin Newsom signed Senate Bill 53, the Transparency in Frontier Artificial Intelligence Act, into law after vetoing a more aggressive predecessor just one year earlier.

    While the European Union spent years developing its EU AI Act and other jurisdictions debate theoretical frameworks, California stepped into the vacuum created by federal inaction. With 32 of the top 50 global AI firms headquartered in California, this state-level regulation effectively sets the de facto standard for frontier AI development worldwide.

    This article examines what SB 53 actually requires, who it affects, how enforcement works, and why California’s approach differs fundamentally from both last year’s failed attempt and the European Union’s regulatory model.

    Who This Actually Covers

    Practically speaking, SB 53 will only apply to OpenAI, Anthropic, Google, Meta, and possibly xAI. That’s the list.

    The law targets “large frontier developers” through two simultaneous thresholds. First, compute usage exceeding 10^26 floating-point operations (26 FLOPS) for model training. This captures systems like GPT-4, Claude 3.5, Gemini 1.5, and Llama 3 while excluding specialized models like AlphaFold or narrow AI applications. Second, annual revenue exceeding $500 million. Both criteria must be met.

    This dual-threshold approach eliminates ambiguity. Companies know immediately whether they’re subject to SB 53 based on objective metrics rather than subjective capability assessments. The California Department of Technology must review these definitions annually and recommend updates, providing built-in flexibility as the field advances.

    The law defines “foundation models” as AI systems trained on broad datasets, designed for generality of output, and adaptable to diverse tasks. This captures large language models and multimodal systems while excluding narrow applications. Critically, SB 53 takes an entity-based rather than model-based approach, regulating developers rather than individual systems.

    “Catastrophic risk” receives specific definition: foreseeable and material risks that could meaningfully contribute to death or serious injury to more than 50 people from a single incident, damage exceeding $1 billion, or specific categories including chemical, biological, radiological, or nuclear; autonomous criminal activity; and loss of control over the system. This separates genuine existential concerns from routine AI failures.

    The territorial reach extends to any frontier developer offering models to California residents or businesses, regardless of corporate structure or development location; so in this respect, it’s strikingly similar to the reach of the EU’s GDPR and EU AI Act.

    The Disclosure Regime: Public vs Confidential

    SB 53 builds a two-track transparency system. Some information must be made public, and some must be delivered confidentially to regulators.

    On the public side, developers must publish a “frontier AI framework” describing how they assess and manage catastrophic risks, plus transparency reports before releasing new or substantially modified models. These are like mandatory model cards: capabilities, limitations, and results of safety testing must be on record, not just voluntarily shared when convenient.

    On the confidential side, developers must also report “critical safety incidents” to California’s Office of Emergency Services — anything from major breaches to evidence of deceptive model behavior that could mask risks. This is somewhat analagous to how autonomous vehicle companies must report driverless vehicle accidents. These reports remain exempt from public records laws, allowing regulators to see sensitive data without exposing vulnerabilities.

    The net effect is simple: companies can no longer cherry-pick what they share. Safety practices and risk events are on file, either for the public or for regulators.

    Unusually, SB 53 lets California’s Office of Emergency Services designate federal reporting standards as satisfying state law — even if federal rules don’t preempt. This creates a safe harbor: comply federally once, and you’ve complied in California. It’s a voluntary harmonization mechanism, and it signals California is eager for Washington to step up with national standards.

    Whistleblower Protections

    SB 53 prohibits frontier developers from preventing or retaliating against “covered employees” who disclose information about catastrophic risks or violations. The definition extends remarkably broadly: full-time employees, contractors, subcontractors, freelancers, unpaid advisors, vendors, and board members involved in assessing, managing, or addressing catastrophic risk.

    Companies must establish internal mechanisms allowing anonymous reporting and must provide updates on how concerns are addressed. Protected disclosures can go to the Attorney General, federal authorities, managers, or other employees with investigative authority if the employee has reasonable cause to believe information reveals specific and substantial danger to public health or safety from catastrophic risk, or that the developer violated SB 53.

    Why this matters: Internal employees often identify risks before external observers, but fear of retaliation prevents disclosure. SB 53’s broad definition and anti-retaliation provisions create formal channels for surfacing safety issues early. The inclusion of board members and unpaid advisors ensures virtually anyone with access to privileged risk information receives protection. This addresses concerns raised when former OpenAI employees criticized safety practices but faced potential legal exposure.

    Independent Audits: Delayed Accountability

    Starting in 2030, large frontier developers must engage independent third-party auditors annually to verify two elements: whether the developer follows their published frontier AI framework, and whether the framework is sufficiently clear that compliance can be objectively determined.

    This five-year delay gives the industry time to establish baseline practices before mandatory verification begins. The requirement addresses a fundamental challenge: voluntary commitments remain unverifiable without external oversight. By requiring auditors to assess both compliance and framework clarity, SB 53 creates pressure for concrete, measurable safety practices rather than aspirational principles.

    Why this matters: The delayed implementation distinguishes SB 53 from last year’s failed SB 1047, which mandated immediate annual audits. That prescriptive approach contributed to industry opposition and veto. The 2030 trigger represents legislative learning: establish transparency first, add verification once practices mature. But it also means five years of self-attestation before independent confirmation begins.

    Enforcement and Penalties

    The California Attorney General holds exclusive enforcement authority. Civil penalties are capped at $1 million per violation.

    The focus is not on punishing catastrophic harms themselves, but on penalizing failures of transparency — for example, not publishing a required framework, misrepresenting risk management, or failing to report incidents.

    SB 53’s liability structure reinforces its transparency-first philosophy. Companies that document their processes and report honestly cannot be sued under this statute even if their models cause catastrophic harm. But they do face significant penalties if they fail to live up to their own disclosures.

    CalCompute and State Preemption

    SB 53 establishes a consortium to develop CalCompute, a state-backed public cloud computing cluster providing free or low-cost resources to startups, researchers, and public-interest projects. The consortium must submit a framework by January 1, 2027, with preference for housing at the University of California. The initiative only proceeds if the state budget allocates funding.

    The law preempts local ordinances specifically related to frontier developer management of catastrophic risk adopted after January 1, 2025, preventing conflicting city and county regulations within California while leaving federal preemption unresolved.

    Practical Implementation Timeline

    SB 53 becomes effective January 1, 2026, creating a tight implementation window for covered developers:

    Before January 1, 2026:

    • Determine whether you meet both compute and revenue thresholds
    • Draft and publish frontier AI framework if covered
    • Establish catastrophic risk assessment processes
    • Create incident detection and reporting mechanisms
    • Implement whistleblower protections and anonymous reporting channels
    • Update employment agreements, contractor relationships, and board policies

    Ongoing Obligations:

    • Publish transparency reports before releasing new or modified models
    • Submit confidential risk assessments to OES for internal model use
    • Report critical safety incidents within required timelines
    • Update frontier AI framework annually
    • Maintain whistleblower investigation and response procedures

    Starting 2030:

    • Engage independent auditors annually to verify framework compliance and clarity

    Companies approaching thresholds should monitor growth trajectories. Revenue nearing $500 million or compute usage approaching 10^26 FLOPs triggers planning obligations before formal coverage begins.

    Looking Forward

    The law includes built-in adaptation mechanisms. The California Department of Technology must annually recommend updated definitions for “frontier model,” “frontier developer,” and “large frontier developer” based on multistakeholder input, technological developments, and international standards. This acknowledges that today’s thresholds might become obsolete as hardware improves and business models change.

    OES must publish annual anonymized incident reports starting in 2027, creating the first longitudinal dataset tracking frontier AI safety at state level. The Attorney General must similarly report on enforcement actions and whistleblower activity. These transparency mechanisms allow assessment of whether SB 53’s accountability measures produce meaningful behavior change.

    The 2030 independent audit requirement triggers the law’s most significant escalation. Once external verification begins, procedural compliance shifts from self-attestation to third-party review. However, technological development might outpace regulatory adaptation. If frontier capabilities advance faster than annual definition updates, dangerous systems might emerge outside SB 53’s scope.

    Conclusion

    SB 53 represents the United States’ first serious attempt to regulate frontier AI development through mandatory transparency requirements backed by civil penalties. Whether this approach succeeds depends on questions that cannot be answered today.

    California’s decision to regulate frontier AI safety marks a turning point in technology policy. For decades, Silicon Valley operated with minimal regulatory constraints, relying on voluntary industry commitments. SB 53 converts some voluntary commitments into binding legal obligations while deliberately avoiding the heavy-handed mandates that doomed last year’s attempt.

    The law embodies a particular philosophy about AI governance: trust but verify, transparency over prescription, accountability without stifling innovation. Whether that philosophy proves adequate for managing catastrophic risks from increasingly capable AI systems remains the defining policy question of our time.

  • ⚠️ EU AI Act enforcement penalties go into effect from Sunday, Feb 2, 2025

    ⚠️ EU AI Act enforcement penalties go into effect from Sunday, Feb 2, 2025

    This is educational material and does not constitute legal advice nor is any attorney/client relationship created with this article, hence you should contact and engage an attorney if you have any legal questions. No warranties, express or implied, are made with respect to its accuracy. Information contained herein, or information relied upon, is subject to change without notice.


    Enforcement penalties under Article 5 of the EU AI Act (“EUAIA”) will go into effect on February 2, 2025.This significant step aims to ensure AI technologies are developed and used in a manner that is safe, transparent, and respects fundamental rights. For a deep dive into the EUAIA, you can read more here.

    Prohibited AI Practices

    From February 2, 2025, certain AI applications will be outright banned due to their unacceptable risk levels. These include manipulative AI systems, social scoring, and emotion recognition systems in certain contexts like workplaces and schools. The penalties for non-compliance could be severe, reaching up to €35 million or 7% of the global annual turnover for the entity, whichever is higher.

    AI Literacy

    A notable aspect of the EUAIA is the mandate for “AI literacy”. Per Article 4 of the EUAIA, providers and deployers of AI systems must ensure their users are equipped with a sufficient understanding of AI. This requirement aims to foster responsible use, although the direct penalties for failing to meet this standard are not explicitly detailed in the initial phase.

    Enforcement and Compliance

    Companies operating within or targeting the EU market must prepare for compliance, as the Act applies to both providers and users of AI systems. This includes ensuring that AI systems do not infringe on the prohibitions set forth by the EUAIA.

    For examples of prohibited AI use,

    For a substantive deep dive into the EUAIA, you can learn more here.

  • Everything you need to know about the EU AI Act (Updated April 14, 2025)

    Everything you need to know about the EU AI Act (Updated April 14, 2025)

    This is educational material and does not constitute legal advice nor is any attorney/client relationship created with this article, hence you should contact and engage an attorney if you have any legal questions.


    We should begin this discussion with an important clarification:

    The European Union AI Act was not in fact conceived in response to the new era of so-called “generative AI” apps that began on November 30, 2022, when ChatGPT launched for public use. On the contrary, the first iteration of the EU AI Act (“EUAIA”) was drafted in April 2021 to regulate artificial intelligence systems generally, not “generative AI” systems like ChatGPT specifically.

    Indeed, it was only subsequent revisions to the EUAIA that sought to incorporate text to accommodate generative AI following the launch of ChatGPT and others. Hence, the final version we study here is essentially an afterthought to compensate for what had been a decidedly unforeseen advent in the evolution of artificial intelligence systems. Simply put, nobody had anticipated generative AI specifically, with its almost mysteriously complex large language models (“LLMs”; learn more here) — at least not any time soon — and so the drafters of the EUAIA had to adapt quickly.

    The final result, published in the Official Journal of the European Union on July 12, 2024, and entering into force on August 1, 2024, is a landmark regulatory framework designed to ensure AI technologies are developed, deployed, and used responsibly. While critics may well fault it for its excessively strong grip akin to the EU’s GDPR (General Data Protection Regulation), its intent is unquestionably sound and indeed necessary to ensure safety in our fast-changing digital world, where fantastical things once limited to the confines of science fiction are now very real indeed.

    This article attempts to unpack and summarize the nuances of the EUAIA, as derived directly from the EUAIA’s entire text and official summary, including key definitions, risk classifications, compliance requirements, penalties, and the implications for AI providers and deployers. A “mind map” is available below for an even deeper dive for those so inclined to learn more.

    EU AI Act Mind Map Preview Image
    EU AI Act Mind Map. Copyright Hoag Law.ai. All Rights Reserved. Contact to request high-res PDF.

    Key Definitions and Scope

    The EUAIA defines an AI system as any machine-based setup that makes inferences to achieve objectives, except systems for military or defense purposes. It uses a functional, effect-based definition, highlighting characteristics such as autonomy, adaptability, and data dependence. The EUAIA applies to providers placing AI systems on the EU market, as well as to providers and deployers of AI systems in third countries if the output is used in the EU. But the EUAIA includes exceptions for free and open-source AI systems, unless they are otherwise prohibited or classified as high-risk AI systems, as defined below.

    Risk Tiers for AI Systems

    EU AI Act Risk Tiers Pyramid
    EU AI Act Risk Tiers. Copyright © Hoag Law.ai. All Rights Reserved.


    The framework of the EUAIA is premised on a categorization of AI systems into three primary risk tiers: prohibited, high-risk, and limited-risk. General-purpose and minimal-risk tiers are also slotted into the hierarchy.

    Overall, the EUAIA mandates transparency for all AI systems, especially those that interact with humans or are involved in emotion recognition or biometric categorization; meanwhile, so-called high-risk AI systems must carry clear labels and instructions.

    Providers of general-purpose AI models are required to disclose detailed technical documentation, including information about training data, limitations, and capabilities. Free and open-source GPAI models are exempt from some requirements unless they present systemic risk.

    The EUAIA also includes specific provisions for deep fakes, defined as AI-generated or manipulated content that falsely appears authentic. Providers and deployers of such systems must disclose that the content is artificially generated or manipulated, with certain exceptions for authorized law enforcement use or evidently artistic works.

    To foster innovation, the EUAIA includes provisions for AI regulatory sandboxes, allowing for supervised testing of novel AI applications. It also provides support measures for SMEs and startups to help them navigate compliance requirements.

    We shall now unpack each of these in decreasing order from highest to least risk.

    Prohibited AI Practices

    The EUAIA bans certain AI practices outright due to their potential for harm. These include:

    • Manipulative AI that distorts human behavior.
    • Social scoring systems that may lead to discriminatory outcomes.
    • Real-time remote biometric identification by law enforcement, except in cases of severe public interest.
    • Biometric categorization systems inferring sensitive attributes, with specific exceptions for law enforcement use.

    High-Risk AI Systems

    High-risk AI systems are those with significant potential to impact health, safety, or fundamental rights. These systems must adhere to stringent requirements, including continuous risk assessment, high-quality data governance, comprehensive technical documentation including labeling requirements, robust quality management systems, and detailed record-keeping. The EUAIA outlines specific high-risk categories in Annex III of the EUAIA, including:

    • Biometric identification and categorization.
    • Critical infrastructure management.
    • Education and vocational training.
    • Employment, workers’ management, and access to self-employment.
    • Essential private and public services.
    • Law enforcement.
    • Migration, asylum, and border control management.
    • Administration of justice and democratic processes.

    General Purpose AI Systems

    These are AI models designed to perform a wide range of tasks and are assumed with systems presenting systemic risks (e.g.,those that exceed 10^25 FLOPs (floating point operations per second; for more information, see here)). Such systems have specific obligations under the EUAIA, including:

    • Providing technical documentation and instructions for use: Publishing a “training data transparency summary” that includes the datasets used, their collection methods (e.g., web scraping or third-party sources), licensing status, legal basis, and whether copyright opt-outs were honored.
    • Complying with EU copyright law.
    • Publishing a summary of training data content.
    • Free and open-source GPAI models are exempt from some requirements unless they present systemic risk.

    The EUAIA also places specific obligations on providers of general-purpose AI models regarding copyright compliance and transparency about training data:

    • Providers must implement a policy to comply with EU copyright law: A text and data mining exception allows reproductions and extractions of lawfully accessible works, unless rightsholders opt out via machine-readable means (e.g., metadata, robots.txt, ai.txt, or T&Cs).
    • The EUAIA recognizes a text and data mining exception, allowing for reproductions and extractions of lawfully accessible works for AI training purposes, but rightsholders can opt out, requiring AI providers to obtain authorization for text and data mining of their works.
    • Providers must publish a sufficiently detailed summary of content used for training, facilitating copyright enforcement.
    • These obligations apply to all GPAI models on the EU market, regardless of where the training occurred.

    Limited Risk AI Systems

    Limited risk systems are those that are not high-risk yet still require transparency and accountability. Somewhat surprisingly, deep fakes are included in this risk category, despite their profound potential to disseminate false or misleading information by impersonating people without their consent. Providers must ensure users are aware they are interacting with an AI system and maintain basic documentation.

    Minimal-Risk AI Systems

    This category encompasses the majority of AI systems currently on the market. These systems:

    • Are not subject to specific obligations under the EUAIA due to their low risk profile.
    • Are encouraged to follow voluntary codes of conduct to ensure ethical and responsible AI development and use.
    • Allow for continued innovation while promoting best practices in AI governance.

    Compliance and Penalties

    Compliance with the EU AI Act involves a multi-faceted approach:

    • Conformity Assessments: High-risk AI systems must undergo pre-market evaluations.
    • Post-Market Monitoring: Continuous surveillance to ensure ongoing compliance.
    • Market Surveillance Authorities: National bodies responsible for enforcement.
    • EU Database: A centralized repository for high-risk AI systems.
    • Notified Bodies: Independent entities conducting conformity assessments.

    Penalties for non-compliance are broken down as follows:

    • Prohibited uses can incur fines up to €35 million or 7% of global annual turnover, whichever is higher and/or prohibition from use.
    • High-risk compliance failures can attract fines up to €15 million or 3% of global turnover, whichever is higher and/or full access to system data and source code for inspection.
    • Misleading information can result in fines up to €7.5 million or 1% of global turnover, whichever is higher and/or proactive market surveillance.

    For SMEs and startups, the fines are subject to the same maximum percentages or amounts, whichever is lower.

    Deployers’ Obligations

    Deployers of AI systems have specific obligations under the EUAIA. They must implement a risk assessment system, adopt transparency principles, and design responsible AI governance frameworks. Additionally, deployers of high-risk AI systems in public services must conduct fundamental rights impact assessments to ensure their systems do not negatively impact rights.

    Data Protection and Privacy

    Alignment with the General Data Protection Regulation (GDPR) is a cornerstone of the EUAIA, ensuring that AI systems comply with stringent data protection laws. Specific rules govern the processing of biometric data, imposing strict conditions to safeguard privacy.

    Governance and International Cooperation

    The governance structure established by the EUAIA includes the European Artificial Intelligence Board, which coordinates regulatory practices across Member States, and the AI Office, which oversees AI regulations and offers guidance. A scientific panel of independent experts provides technical and ethical advice. Internationally, the Act promotes global cooperation to ensure that AI systems developed outside the EU comply with EU standards. Mutual recognition agreements facilitate conformity assessments with other jurisdictions, ensuring a global standard for AI safety and compliance.

    Implementation Timeline

    The EUAIA’s implementation is slated to be phased in accordingly, with key dates including:

    • August 1, 2024: The EUAIA officially goes into effect.
    • February 2, 2025: Prohibited uses become enforceable.
    • May 2, 2025: Codes of practice for general-purpose AI models are made available. (This will be interesting to see.)
    • August 2, 2025: Compliance deadline for general-purpose AI providers.
    • February 2, 2026: The Commission provides guidelines and practical examples. (Also this.)
    • August 2, 2026: Full applicability of the EUAIA, with operational infrastructure.
    • August 2, 2027: Extended compliance for certain high-risk AI systems.

    Ongoing Case Law and Compensation Frameworks

    In September 2024, the Hamburg Regional Court ruled in favor of LAION, a non-profit that distributed datasets with links to copyrighted content, citing a text and data mining exception for scientific purposes.

    In March 2025, French publisher and author organizations sued Meta Platforms Inc. over alleged unauthorized use of copyrighted works to train Llama, a generative AI model.

    French policymakers are also exploring collective rights management and trusted intermediaries to ensure authors are compensated fairly when their content is used in AI training.

    Conclusion

    Like it or not, the EU AI Act is an impressively comprehensive regulatory framework designed to manage the rapid evolution of artificial intelligence, including and especially generative AI with all of its controversial copyright infringement allegations for language model (LLM) training data. By establishing robust compliance mechanisms, promoting transparency, and fostering innovation, the EUAIA aims to create a balanced ecosystem where AI can thrive while safeguarding fundamental rights and public interest, even if it may seem stifling. For AI developers, providers, and deployers, understanding and adhering to the EU AI Act is crucial for navigating the new regulatory landscape effectively.

    For further questions, feel free to reach out.