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AI Watch: Global regulatory tracker

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Keeping track of AI regulatory developments around the world.

The global dash to regulate AI

Artificial intelligence (AI) has made enormous strides in recent years and has increasingly moved into the public consciousness.

Increases in computational power, coupled with advances in machine learning, have fueled the rapid rise of AI. This has brought enormous opportunities, as new AI applications have given rise to new ways of doing business. It has also brought potential risks, from unintended impacts on individuals (e.g., AI errors harming an individual's credit score or public reputation) to the risk of misuse of AI by malicious third parties (e.g., by manipulating AI systems to produce inaccurate or misleading output, or by using AI to create deepfakes).

Governments and regulatory bodies around the world have had to act quickly to try to ensure that their regulatory frameworks do not become obsolete. In addition, international organizations such as the G7, the UN, the Council of Europe and the OECD have responded to this technological shift by issuing their own AI frameworks. But they are all scrambling to stay abreast of technological developments, and already there are signs that emerging efforts to regulate AI will struggle to keep pace. In an effort to introduce some degree of international consensus, the UK government organized the first global AI Safety Summit in November 2023, with the aim of encouraging the safe and responsible development of AI around the world. 

Most jurisdictions have sought to strike a balance between encouraging AI innovation and investment, while at the same time attempting to create rules to protect against possible harms. However, jurisdictions around the world have taken substantially different approaches to achieving these goals, which has in turn increased the risk that businesses face from a fragmented and inconsistent AI regulatory environment. Nevertheless, certain trends are becoming clearer at this stage:

  1. "AI" means different things in different jurisdictions: One of the foundational challenges that any international business faces when designing an AI regulatory compliance strategy is figuring out what constitutes "AI." Unfortunately, the definition of AI varies from one jurisdiction to the next. For example, the EU AI Act adopts a definition of "AI systems" that is based on (but is not identical to) the OECD's definition, and which leaves room for substantial doubt due to its uncertain wording. Canada has proposed a similar, though more concise, definition. Various US states have proposed their own definitions, which differ from one another. And many jurisdictions (e.g., the UK, Israel, China, and Japan) do not currently provide a comprehensive definition of AI. Because several of the proposed AI regulations have extraterritorial effect (meaning more than one AI regulation may apply simultaneously), international businesses may be forced to adopt a "highest common denominator" approach to identifying AI based on the strictest applicable standard.
  2. Emerging AI regulations come in different forms: The various emerging AI regulations have no consistent legal form – some are statutes, some are executive orders, some are expansions of existing regulatory frameworks, and so on. The EU AI Act is a "Regulation" (which means that most of it will apply directly in all EU Member States, without the need for national implementation in most cases). The UK has taken a different approach, declining to legislate at this early stage in the development of AI, and instead choosing to task existing UK regulators with the responsibility of interpreting and applying five AI principles in their respective spheres. In the US, there is a mix of White House Executive Orders, federal and state initiatives, and actions by existing regulatory agencies, such as the Federal Trade Commission. As a result, the types of compliance obligations that international businesses face are likely to be materially different from one jurisdiction to the next. Many other jurisdictions have yet to decide whether they will issue sector-specific or generally applicable rules and have yet to decide between creating new regulators or expanding the roles of existing regulators, making it challenging for businesses to anticipate what form their AI regulatory relationships will take in the long term.
  3. Emerging AI regulations have different conceptual approaches: The next difficulty is the lack of a consistent conceptual approach among emerging AI regulations around the world – some are legally binding while others are not, some are sector-specific while others apply across all sectors, some will be enforced by regulators while others are merely guidelines or recommendations, and so on. As noted above, the UK approach is to use existing regulators to implement five AI principles, but with no new explicit legal obligations. This has the advantage of meaning that businesses will deal with AI regulators with whom they are already familiar but has the disadvantage that different UK regulators may interpret these principles differently in their respective spheres. The EU AI Act is cross-sectoral and creates new regulatory and enforcement powers for existing bodies, including the European Commission, and also creates entirely new bodies such as the AI Board and the AI Office, while leaving EU Member States to appoint their own AI regulators tasked with enforcing the EU AI Act. In the US, the Federal Trade Commission, Equal Employment Opportunity Commission, Consumer Financial Protection Bureau, and Department of Justice issued a joint statement clarifying that their existing authority covers AI, while various state regulators are also likely to have competence to regulate AI. International organizations including the OECD, the UN, and the G7 have issued AI principles, but these impose no legal obligations on businesses. In principle, these initiatives encourage consistency across members of each organization, but in practice this does not seem to have worked.
  4. Flexibility is a double-edged sword: In an effort to create AI regulations that can adapt to technological advances that have not yet been anticipated, many jurisdictions have sought to include substantial flexibility in those regulations, either by using deliberately high-level wording and policies, or by allowing for future interpretation and application by courts and regulators. This has the obvious advantage of prolonging the lifespan of such regulations by allowing them to be adapted to future technologies. However, it also creates the disadvantage of uncertainty because it leaves businesses uncertain of how their compliance obligations will be interpreted in the future. This is likely to mean that it is harder for businesses to know whether their planned implementations of AI will be lawful in the medium-to-long term and may make it harder to attract long-term AI investment in those jurisdictions.
  5. The overlap between AI regulation and other areas of law is complex: A substantial number of laws that are not directly focused on AI nevertheless apply to AI by association within their respective spheres, meaning that any use of AI will often trigger compliance issues and legal challenges even where there is not (yet) any enforceable AI-specific law. These areas of overlap include: IP (e.g., IP infringement issues with respect to AI model training data, and questions about copyright and patentability of AI-assisted inventions); antitrust; data protection (which adds restrictions to processing of personal data, and in some cases imposes special compliance obligations for processing carried out by automated means, including by AI); M&A (where AI innovation is driving dealmaking in many markets); financial regulation (where financial regulatory requirements may limit the ways in which AI can lawfully be deployed); litigation; digital infrastructure; securities; global trade; foreign direct investment; mining & metals; and so on. This overlap will mean that many businesses need to understand not just AI regulations in general, but also any rules that affect the use of AI in the context of the relevant sector or business activity.

Businesses in almost all sectors need to keep a close eye on these developments to ensure that they are aware of the AI regulations and forthcoming trends, in order to identify new opportunities and new potential business risks. But even at this early stage, the inconsistent approaches each jurisdiction has taken to the core questions of how to regulate AI is clear. As a result, it appears that international businesses may face substantially different AI regulatory compliance challenges in different parts of the world. To that end, this AI Tracker is designed to provide businesses with an understanding of the state of play of AI regulations in the core markets in which they operate. It provides analysis of the approach that each jurisdiction has taken to AI regulation and provides helpful commentary on the likely direction of travel.

Because global AI regulations remain in a constant state of flux, this AI Tracker will develop over time, adding updates and new jurisdictions when appropriate. Stay tuned, as we continue to provide insights to help businesses navigate these ever-evolving issues.

Articles

Australia

Voluntary AI Ethics Principles guide responsible AI development in Australia, with potential reforms under consideration.

Australia

Brazil

The enactment of Brazil's proposed AI Regulation remains uncertain with compliance requirements pending review.

Sao Paulo

Canada

AIDA expected to regulate AI at the federal level in Canada but provincial legislatures have yet to be introduced.

Canada

China

The Interim AI Measures is China's first specific, administrative regulation on the management of generative AI services.

China

Council of Europe

The Council of Europe is developing a new Convention on AI to safeguard human rights, democracy, and the rule of law in the digital space covering governance, accountability and risk assessment.

European Union

Czech Republic

The successful implementation of the EU AI Act into national law is the primary focus for the Czech Republic, with its National AI Strategy being the main policy document.

Czech Republic

European Union

The EU introduces the pioneering EU AI Act, aiming to become a global hub for human-centric, trustworthy AI.

 

European Union

France

France actively participates in international efforts and proposes sector-specific laws.

Paris

G7

The G7's AI regulations mandate Member States' compliance with international human rights law and relevant international frameworks.

G7 flags

Germany

Germany evaluates AI-specific legislation needs and actively engages in international initiatives.

Germany

India

National frameworks inform India’s approach to AI regulation, with sector-specific initiatives in finance and health sectors.

India

Israel

Israel promotes responsible AI innovation through policy and sector-specific guidelines to address core issues and ethical principles.

Israel

Italy

Italy engages in political discussions for future laws.

Milan

Japan

Japan adopts a soft law approach to AI governance but lawmakers advance proposal for a hard law approach for certain harms.

Tokyo

Kenya

Kenya's National AI Strategy and Code of Practice expected to set foundation of AI regulation once finalized.

Kenya
Kenya

Nigeria

Nigeria's draft National AI Policy underway and will pave the way for a comprehensive national AI strategy.

Nigeria
Nigeria

Norway

Position paper informs Norwegian approach to AI, with sector-specific legislative amendments to regulate developments in AI.

Norway

OECD

The OECD's AI recommendations encourage Member States to uphold principles of trustworthy AI.

country flags

Saudi Arabia

Saudi Arabia is yet to enact AI Regulations, relying on guidelines to establish practice standards and general principles.

Riyadh_Hero_1600x600 Saudi Arabia

Singapore

Singapore's AI frameworks guide AI ethical and governance principles, with existing sector-specific regulations addressing AI risks.

Singapore

South Africa

South Africa is yet to announce any AI regulation proposals but is in the process of obtaining inputs for a draft National AI plan.

Johannesburg

South Korea

South Korea's AI Act to act as a consolidated body of law governing AI once approved by the National Assembly.

Korea

Spain

Spain creates Europe's first AI supervisory agency and actively participates in EU AI Act negotiations.

Madrid

Switzerland

Switzerland's National AI Strategy sets out guidelines for the use of AI, and aims to finalize an AI regulatory proposal in 2025.

Switzerland

Taiwan

Draft laws and guidelines are under consideration in Taiwan, with sector-specific initiatives already in place.

Taiwan city

Turkey

Turkey has published multiple guidelines on the use of AI in various sectors, with a bill for AI regulation now in the legislative process.

Türkiye

United Arab Emirates

Mainland UAE has published an array of decrees and guidelines regarding regulation of AI, while the ADGM and DIFC free zones each rely on amendments to existing data protection laws to regulate AI.

UAE

United Kingdom

The UK prioritizes a flexible framework over comprehensive regulation and emphasizes sector-specific laws.

London hero image

United Nations

The UN's new draft resolution on AI encourages Member States to implement national regulatory and governance approaches for a global consensus on safe, secure and trustworthy AI systems.

United Nations

United States

The US relies on existing federal laws and guidelines to regulate AI but aims to introduce AI legislation and a federal regulation authority.

New York city photo

Contacts

Tim Hickman
Partner
London
Erin Hanson
Partner
New York
Dr. Sylvia Lorenz
Partner
Berlin
Madrid

AI Watch: Global regulatory tracker - Spain

Spain creates Europe's first AI supervisory agency and actively participates in EU AI Act negotiations.

Insight
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10 min read

Laws/Regulations directly regulating AI (the “AI Regulations”)

Currently, there are no specific laws, statutory rules, or regulations in Spain that directly regulate AI, and Spain is not currently expected to enact its own general, far-reaching AI regulation. As for all EU Member States, the EU AI Act will likely be Spain's central general and cross-sectoral AI legislation.

However, Spain has published a Charter of Digital Rights (July 2021) (the "Charter") which establishes a set of non-binding principles and rights that may influence the interpretation of Spanish laws.1 The Spanish government has also published a National Artificial Intelligence Strategy (the "National AI Strategy") (November 2020), which may inform the country's regulatory efforts2 (together, the "Spanish Guidelines").

As part of the Spanish digital transformation strategy, Royal Decree 817/2023, which establishes a controlled test environment in compliance with the EU AI Act ("RD Sandbox") has been enacted. This initiative creates a controlled test environment designed to enable participants to implement high-risk AI systems under the EU AI Act with the aim of obtaining guidance on achieving compliance. This initiative is expected to crystalize in a report containing good practices,3 the conclusions of which are expected to inform future national regulations.

In connection with the above, the Spanish government has also approved Royal Decree 729/2023, on the Statute of the Spanish Agency for the Supervision of Artificial Intelligence (Agencia Española de Supervisión de Inteligencia Artificial) ("AESIA Statute"), which regulates the incorporation of AESIA, whose activities will be focused on supervisory tasks (including inspection and sanctioning powers on AI provided for in the EU AI Act), advice, awareness and training for the proper implementation of all national and European regulations regarding the proper use and development of artificial intelligence systems.4

In addition, Order ETD/670/2020, creates and lays down the legal regime of an Artificial Intelligence Advisory Council (Consejo Asesor de Inteligencia Artificial), aimed at providing independent advice and recommendations to the Ministry of Digital Transformation on matters related to the development and promotion of artificial intelligence policies and to encourage expert debate on public policies.5

Likewise, organizations such as the Organisation for Economic Cooperation and Development (OECD) have also published principles in relation to the use of AI, to which Spain adheres.6

Status of the AI Regulations

The EU AI Act is addressed separately here: AI watch: Global regulatory tracker - European Union

As noted above, there are currently no specific laws or regulations in Spain that directly regulate AI. Having this in mind, and by way of context, the National AI Strategy is proposed as a reference framework for the period of 2020-2025 that allows for the orientation of sectoral, state, and regional strategies on this matter, which are in line with the policies developed by the EU.

For completeness:

  • The AESIA Statute was approved on August 22, 2023 and has been in force since September 2, 2023
  • The RD Sandbox was approved on November 8, 2023, and has been in force since November 10, 2023, with a maximum duration of 36 months from its entry into force or, until the EU AI Act is applicable in Spain

Other laws affecting AI

  • There are a number of laws that do not directly seek to regulate AI but may affect the development or use of AI in Spain. A non-exhaustive list of key examples includes: The Spanish Organic Law 3/2018 on the Protection of Personal Data and Guarantee of Digital Rights
  • Law 15/2007 on the Defence of Competition
  • Organic Law 1/1982 on the civil protection of the right to honor, personal and family privacy and self-image
  • Law 3/1991 on Unfair Competition
  • Law 15/2022 on equal treatment and non-discrimination
  • The Spanish Organic Law 2/1984 on the right of rectification
  • Law 34/2002 on information society services and electronic commerce
  • Law 9/2014, General Telecommunications Law
  • Law 7/2010, General Law on Audiovisual Communication
  • Royal Legislative Decree 2/2015, which approved the revised text of the Workers' Statute Law
  • Law 10/2021 on Telecommuting
  • Royal Legislative Decree 1/1996, which approved the revised text of the Intellectual Property Law, regularizing, clarifying and harmonizing the current legal provisions on the subject

Definition of “AI”

Spain's National AI Strategy explicitly mentions that there is still no formal and universally accepted definition of AI and merely refers to the one used by the European Commission. Notwithstanding the above, in the recently approved Spain's RD Sandbox, for the purpose of determining the characteristics of the participants in the controlled environment, some definitions close to AI are included. In particular:

  • "AI system" is defined as: "system designed to operate with a certain level of autonomy and which, based on input data provided by machines or by people, infers how to achieve a set of objectives set using machine-learning strategies or based on logic and knowledge, and it generates output information, such as content (generative artificial intelligence systems), predictions, recommendations or decisions, that influence the environments with which it interacts"7
  • "High-Risk AI System" is defined as: "an artificial intelligence system that meets any of the following:8
    • An artificial intelligence system constituting a product governed by the Union harmonization legislation shall be considered high risk if it is to be subject to a conformity assessment by a third party with a view to the introduction into the market or commissioning of such a product in accordance with the aforementioned legislation
    • An artificial intelligence system to be used as a component that performs a safety function and whose failure or malfunction endangers the health and safety of persons or property in a product regulated by a harmonized standard of the European Union, whether it is to be subjected to a conformity assessment by a third party with a view to the placing on the market or putting that product into service in accordance with the applicable harmonization legislation. This assumption will be applicable, even if the artificial intelligence system is marketed or put into service independently of the product
    • An artificial intelligence system, from the list of specific areas in which certain artificial intelligence systems are considered high risk, provided that the response of the system is relevant to the action or decision to be taken and may therefore cause a significant risk to health, the rights of workers in the workplace or safety or fundamental rights"9
  • Spain's RD Sandbox defines "general-purpose AI system" as: "an artificial intelligence system that, regardless of the mode in which it is marketed or put into service, including as open source software, is intended by the system provider to perform general application functions, such as text, image and speech recognition; the generation of texts, audios, images and/or videos; pattern detection; answering questions; translation and others"10

Territorial scope

As there are currently no specific laws or regulations in Spain that directly regulate AI, there is no specific territorial scope for such laws. Notwithstanding the above, the Spanish Guidelines are addressed to the whole Spanish territory with the objective of achieving consistency, ensuring organization and cohesion, territorial governance and coordination between different administrative spheres, from the national to the local level. It also addresses coordination with regulation and policies at the European level.

International cooperation focus is reflected in the National AI Strategy, which places special emphasis on promoting participation in international forums such as the Council of Europe or the OECD, as well as through Spain's adherence to European initiatives such as the Digital Agenda for Europe adopted in 2018, the Coordinated Plan on AI 2019-2027, and the White Paper on Artificial Intelligence published in February 2020.

Sectoral scope

As noted above, there are currently no specific laws or regulations in Spain that directly regulate AI. Accordingly, there is no sectoral scope for such laws.

Compliance roles

As noted above, there are currently no specific laws or regulations in Spain that directly regulate AI. Accordingly, there is no formal identification of AI rules addressees. However, it is apparent from the reading of the Spanish Guidelines and the AESIA Statute (in line with the EU AI Act) that AI regulations are addressed to all the different actors with a role in the AI space (public administrations, developers, deployers, managers and users).

Core issues that the AI Regulations seek to address

The core issues that future AI Regulations may seek to address may be inferred from AESIA's main objectives, which are the following:

  • The awareness, dissemination and promotion of training, development, and responsible, sustainable and reliable use of artificial intelligence
  • The definition of mechanisms for advising and assisting society and other actors related to the development and use of artificial intelligence
  • Collaboration and coordination with other national and supranational authorities for the supervision of artificial intelligence
  • The promotion of real test environments for artificial intelligence systems, in order to reinforce the protection of users and avoid discriminatory biases
  • The supervision of the implementation, use or commercialization of systems that include artificial intelligence and, especially, those that may pose significant risks to health, safety, equal treatment and non-discrimination, particularly between women and men, and to other fundamental rights

The above purposes are also in line with those of the Spanish Guidelines and could be summarized as the maximum development of AI in various areas (such as education and healthcare), enhancing its potential economic and social benefits by adapting our rules of coexistence to the needs of the moment, while moving toward a reliable, accountable, transparent and inclusive AI that ensures compliance with fundamental rights and applicable regulations, as well as respect for fundamental principles and values, and takes into account the collective aspirations of citizens.

Risk categorization

As noted above, there are currently no specific laws or regulations in Spain that directly regulate AI. That said, the Charter links the guarantees to be provided by public authorities to the different risk level posed by the AI, which assumes a risk categorization, in accordance with European regulations.

Additionally, as previously mentioned, the RD Sandbox also includes different definitions of AI systems based on the different risks they may pose.

Key compliance requirements

As noted above, there are currently no specific laws or regulations in Spain that directly regulate AI. Nevertheless, the principles of the Charter (set out above), indicate that Spanish laws will be interpreted with the requirements of explainability and accountability in mind.11

Regulators

As already mentioned, Spain has approved the creation of the AESIA. AESIA is set to be responsible for enforcing the EU AI Act.

Likewise, another important actor to note is the Artificial Intelligence Advisory Council, which is aimed at advising the government on the design and dissemination of AI policies, and who will contribute to the development of the National Artificial Intelligence Strategy and the analysis of its implications.

Enforcement powers and penalties

As noted above, there are no specific laws or regulations in Spain that directly regulate AI. Excluding the EU AI Act, enforcement powers and penalties relating to AI will be pursuant to any applicable non-AI specific regulation.

The AESIA is the entity that has been assigned the inspection, verification and sanctioning of AI matters.

1 The Charter of Digital Rights is available here.
2 The National AI Strategy is
available in English here.
3 The Royal Decree 817/2023 is
available here.
4 The Royal Decree 729/2023 is
available here.
5 The Order ETD/670/202 is
available here.
6 The OECD Legal Instrument 0449 – Recommendation of the Council on Artificial Intelligence is available in
English here
7 The Royal Decree 817/2023 is
available here, Article 3(3).
8 In order to make more accurate definitions, the RD Sandbox makes certain references to EU legislation and a list of specific areas in which artificial intelligence systems are considered high risk by virtue of the definitions set forth in the RD Sandbox.
9 The Royal Decree 817/2023 is
available here, Article 4.
10 The Royal Decree 817/2023 is
available here, Article 5.
11 The Charter of Digital Rights is
available here.

White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.

This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.

© 2024 White & Case LLP

Ana Calvo (Local Partner, White & Case, Madrid), Marcos Soberon (Local Partner, White & Case, Madrid) and Carlos Pena (Associate, White & Case, Madrid) contributed to this publication.

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