What Counts as Damage?
Directive (EU) 2024/2853 broadens the product category for software and AI, but it does not make every digital disappointment a compensable injury. This chapter focuses on the second gate after product and operator classification: whether the claimed loss fits the Directive’s defined damage categories and is linked to a defective product. The distinction lets readers separate physical and psychological injury, property loss, and non-professional data corruption from privacy breaches, pure economic loss, professional-use losses, and other claims that may require a different legal route.
The three core categories
Article 6 limits the Directive’s compensation route to three broad types of damage. The first is death or personal injury, including medically recognised damage to psychological health. The second is damage to, or destruction of, property, subject to specific exclusions. The third is destruction or corruption of data that are not used for professional purposes.
The categories are broad enough to matter in a software-enabled product, but they are not interchangeable. A defective AI-controlled appliance that causes a person to fall raises a personal-injury question. A defective update that overheats and damages a privately owned device raises a property question. A product that corrupts a household’s personal files raises a data question. Each still requires a connection to a defective product and the other elements of the Directive; the category alone does not establish liability.
Personal injury includes recognised psychological harm
The Directive expressly includes medically recognised damage to psychological health within personal injury. This matters because harm caused by a defective product is not always visible as a broken bone or physical wound. A safety failure could produce a medically recognised psychological condition that affects the victim’s general state of health and requires therapy or medical treatment. The source points to medical recognition and certification, not to every moment of fear, frustration, or distress that a digital product can cause.
That boundary is important for AI systems. A dangerous automated decision, an unsafe machine response, or a persistent failure of a protective product could have psychological consequences. Whether those consequences qualify as personal injury depends on the medical and factual evidence and on national rules about compensation. The Directive does not create a free-standing right to damages for any upsetting output. It makes clear that a recognised psychological-health injury can belong to the same statutory category as other personal injury.
Article 6 also says the compensation route covers all material losses resulting from the listed damage. Non-material losses, such as pain and suffering, are included to the extent that national law allows compensation for them. The Directive therefore establishes the kind of damage it reaches while leaving important rules about calculating compensation to Member States.
Property damage protects private and mixed-use interests
Property damage includes damage to or destruction of property, but the Directive excludes property used exclusively for professional purposes. It also excludes the defective product itself and certain situations involving a product damaged by a defective component integrated into it by the product’s manufacturer or within that manufacturer’s control.