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Peru: The Draft regulations of the law that promotes the use of AI have been published

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In brief

On 2 May 2024, the Draft Regulation of Law No. 31814, Law that promotes the use of artificial intelligence in favor of the economic and social development of the country (the “Law” and the “Draft“, respectively), which aims to establish the conditions that guarantee the development and responsible use of artificial intelligence (AI), was published for comments.

The main provisions are as follows:

1. Scope of application

The Law and its regulations apply to the following:

  1. Public administration entities, including legal persons under the private regime that provide public services or exercise administrative function, by virtue of an authorization from the state
  2. Companies that carry out state business activity and that are within the scope of the National Fund for the Financing of State Business Activity; and
  3. Civil society organizations, citizens, companies and academic institutions, as appropriate

2. Guiding principles for the use and development of AI in addition to those provided for in the Law

  • Safety, proportionality and reliability: AI-based systems must be safe to ensure the intended purpose and minimize the risks associated with such systems through a risk-based approach. The use of these systems must be proportional to their purpose.
  • Transparency and explainability: Algorithmic transparency and traceability measures must be incorporated, and information on their uses must be provided to users to give them a better understanding of how using these AI-based systems will affect them.
  • Human responsibility: The responsibility generated by the use and development of AI-based systems ultimately falls on the human person, and they are therefore subject to ethical, civil, administrative and criminal liability.
  • Accountability and human oversight: AI-based systems should have mechanisms for accountability and oversight. Where appropriate, human oversight mechanisms should be incorporated.

3. Classification of AI-based systems

AI-based systems are classified, at a minimum, according to the risk of affecting fair treatment, transparency and fundamental rights that is generated by their use. The classification covers the categories “unacceptable,” “high,” “medium” and “low” risk.

4. Key risk management arrangements in AI-based systems

  • The implementer of an AI-based system must take appropriate management measures according to the system’s level of risk.
  • An AI-based system is considered a high risk when it does not have mechanisms to interpret how a certain result has been arrived at or how much it is used for activities such as biometric identification and categorization of natural persons; selection of workers or job applicants; and credit assessment of individuals.
  • An implementer of a high-risk AI-based system must, among other things, identify and evaluate the risks generated and implement measures to manage them by preparing reports that describe the system validation process.
  • An AI-based system is considered an unacceptable risk when it is used to modify the behavior of a person through subliminal techniques and to classify the reliability of a person or group through the quantification of their social behavior whenever such classification generates a detrimental effect. It is prohibited to use an AI-based system of unacceptable risk within the national territory.

5. Measures to strengthen the responsible and ethical use of AI

  1. Inform the citizen, in advance, in a clear and simple manner, of the use of such a system
  2. Explain the operation and parameters used to arrive at a result
  3. Provide information on the persons responsible for decision-making and the rights available to the affected party
  4. Ensure compliance with copyright and intellectual property rights in the use and development of AI-based systems
  5. Establish a communication channel for a person to report misuse of AI-based systems or noncompliance with a standard

6. Measures for safety and confidence in the use and development of AI

  1. Communicating digital security incidents involving AI-based systems to the National Digital Security Center
  2. Include visible labeling on text, images, videos and audios to identify that they have been generated by an AI-based system

You can find the project at this link.

Interested parties can send their comments on the project via email to rinfante@pcm.gob.pe until 14 June 2024.

We hope you will find this information relevant. Please do not hesitate to contact us should you require any further advice.

Spanish version

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Teresa Tovar leads the Antitrust and Competition, Compliance and TMT groups in the Firm's Lima office, where she has been partner since 2007. She is also currently a member of Baker McKenzie's Latin America Antitrust and Compliance Steering Committees.

Author

Crosbby is a senior associate and has more than nine years of experience in competition law, advertising and regulation, both in the private and public sectors, which allows having a holistic view of the difficulties of our clients. He has participated in the most important investigations and procedures in competition law in Peru. Different law firm rankings have highlighted his work in the field of competition law and telecommunications, due to his deep knowledge in the subjects. Crosbby also has knowledge in microeconomics, which allows him to have a multidisciplinary approach in competition law that is an advantage for our clients. He also has solid technical knowledge in the field of telecommunications. Crosbby is in charge of legal counselling in competition matters, advertising regulation, consumer protection, telecommunications and data protection. In the same way, he is in charge of the defense of our clients in different proceedings before INDECOPI and OSIPTEL.

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Viviana is a senior associate and has extensive experience in competition law, with experience in advising companies on matters related with the application of the antitrust law, unfair competition law, and consumer protection law. Viviana has participated in several administrative procedures before the Free Competition Commission, the Unfair Competition Commission, the Consumer Protection Commission, and the Elimination of Bureaucratic Barriers Commission and before the Competition Court of the National Institute of Competition Defense and Protection of Industrial Property (INDECOPI). Viviana also has experience in data privacy matters, having advised several companies on their implementation to such legal framework.

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