Source: EURLEX
Language: en
Format: md

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Adapting Civil Liability Rules to the Digital Age and

Artificial Intelligence

Factual summary report on public consultation

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| Disclaimer: This document should be regarded solely as a summary of the contributions made by stakeholders in the public consultation on the initiative Adapting Civil Liability Rules to the Digital Age and Artificial Intelligence (sections I and II). It cannot be regarded as the official position of the Commission and its services and thus do not bind the Commission. Contributions to public consultations cannot be considered as a representative sample of the view of the EU population. |

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| EUROPEAN COMMISSION | |
| Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs (DG GROW)  Directorate-General for Justice and Consumers (DG JUST) |

1. Introduction 

The Commission conducted a public consultation in order to confirm the relevance of issues identified in the 2018 evaluation of the Product Liability Directive (Directive 85/374/EEC), and to gather stakeholder views on how to improve the Directive and how to address the specific challenges that artificial intelligence (AI) poses for liability rules. The consultation ran from 18 October 2021 and 10 January 2022 on the “Have Your Say” portal. It was complementary to stakeholder interviews, workshops and targeted consultations conducted in parallel.

Section I of the consultation was on the Product Liability Directive (PLD) and concerned the difficulties of applying the Directive to products in the digital and circular economy and the difficulties for consumers of getting compensation and making claims.

Section II of the consultation concerned problems linked to certain types of AI that make it possibly difficult to identify the potentially liable person, to prove that person’s fault and/or the defect of a product and the causal link with the damage.

The purpose of this document is to provide a factual summary of the public consultation results.

2. Who replied to this public consultation?

Section I of the public consultation received a total of 291 responses and 65 position papers from 22 business associations, 10 companies, 8 NGOs, 6 EU citizens, 4 academics, 3 consumer organisations and 1 other entity. An additional seven position papers were received by email.

More than half of the respondents answered as organisations (58% or 168 responses out of all responses), while the rest of the respondents (42% or 123 responses) answered as individuals.

Approximately 93% (272) of all responses came from EU Member States. The largest group of respondents came from Germany which accounted for more than a third of all responses (108 or 37.1%), with respondents from Belgium and France in second and third place, with 46 (15.8%) and 36 (12.4%) respondents, respectively. Other Member States included Italy (14 or 4.8%), followed by Austria (12 or 4.1%), Netherlands (9 or 3.1%), Finland (8 or 2.7%), Poland (8 or 2.7%) and Spain (7 or 2.4%). 19 responses (or 6.5%) were received by non-EU countries, which included eight from the US, four from the UK, two from Canada and Switzerland respectively and one from Brazil, Jamaica and Russia.

Out of 168 organisations responding to the public consultation, 53 were large organisations (with 250 or more employees), 34 were medium (50 to 249 employees), 37 were small (10 to 49 employees) and 44 were micro (1 to 9 employees). Furthermore, out of the total 89 business associations, consumer organisations, NGOs and trade unions responding to the consultation, 42 (48%) represented interests at the national level, 40 (45%) at the European level, and 7 (8%) at the international level.

A filter question asking respondents to choose if they want to continue with Section II or finish the survey after Section I was inserted in the consultation. Hence, 233 responses were provided, in total, in Section II of the public consultation, including by business associations (63), representing a wide variety of interests and company sizes, individual companies (29), including SMEs (9), associations representing consumers (7), individual citizens (95), NGOs (10), research institutions (14) and national ministries (5).

As regards geographical representation, there were contributions originating from 21 Member States, as well as from third countries. Some associations, however, while indicating Belgium as their country of origin, also represent stakeholders from Member States not directly mentioned in their contributions. The majority of overall respondents come from Germany (91), followed by Belgium (39) and France (20).

3. What are the views of respondents who replied to the public consultation – Section I on the Product Liability Directive?

3.1. The Product Liability Directive and the problems this initiative aims to address

A total of 128 respondents out 291 (44%) replied that they had detailed knowledge of the Directive, its objectives, rules and application.

Among individual members of the public, 50 out of 133 reported having suffered damage due to a defective product, of which 44% (22) experienced personal injury or death and another 42% (21) property damage. In particular, 62% of respondents who suffered damage reported that it was related to "vehicles; machinery and mechanical appliances or parts thereof; electrical equipment; and digital consumer products" while the remaining 38% reported having suffered damage due to pharmaceutical products. Out of the 50 respondents, only 15 stated that they had sought compensation.

3.2.Adapting the Product Liability Directive to the digital age and circular economy

ØIntangible items: software and digital services

This section of the consultation focused on the need to adapt the Directive to the digital age and, in particular, on the role that digital content such as software, algorithms, digital services and data should play in the safe functioning of many products.

All respondents (155), excluding individual members of the public, mainly agreed that consumers should get compensation under the Directive when intangible products are defective and cause physical/property damage. In particular in the case of: software that controls how a product works (78% or 122 out of 155)
[1](#footnote3)
; software upgrades and updates (66% or 102 out of 154)
[2](#footnote4)
; software supplied separately to use on a product (56% or 87 out of 155) 
[3](#footnote5)
; digital services that controls how a product work (55% or 85 out of 154)
[4](#footnote6)
. Fewer than half were in favour of including data or information per se.

Individual members of the public (122), on the other hand, showed even stronger agreement, with 96%, on average, agreeing or strongly agreeing that consumers should get compensation if damaged by defective software or digital services that control how a product works and software upgrades/updates.

ØOnline marketplaces and products coming from outside the EU

Nowadays, online marketplaces enable consumers to buy products from outside the EU without there being an importer. Around 64% of all respondents (179 out of 280) agreed or strongly agreed that the Directive needs to ensure consumer protection if defective products cause damage bought through online marketplaces where there is no EU-based producer or importer.
[5](#footnote7)
 Of those, 83% (148 out of 179) were non-business respondents, while only 17% (31) were business respondents represented.

In contrast, there was greater disagreement among respondents (45%
[6](#footnote8)
 (126 out of 280) either disagreed or strongly disagreed) on whether the proposed draft Digital Services Act (DSA) and draft General Product Safety Regulation (GPSR) were sufficient to ensure consumer protection as regards online marketplaces, while only 29%
[7](#footnote9)
 (81) were favourable.

ØNew risks and new kinds of damage

Respondents were asked to agree or disagree with a set of statements to better understand their position concerning new risks and kinds of damages that digital technologies might bring.

·70% of respondents (196 out of 280) agreed or strongly agreed that producers should be liable for failing to provide security updates.
[8](#footnote10)
 

·60% (or 168) agreed or strongly agreed that producers should be liable for damage to data.
[9](#footnote11)
 

·59% (or 165) that producers should be liable for data protection infringements.
[10](#footnote12)

ØAdapting the Directive to the circular economy

In the context of circular economy business models, changes to products after they are placed on the market are increasingly common. Respondents were asked to agree or disagree on a set of statements to better understand who should be strictly liable when repaired, refurbished or remanufactured products were defective and caused damage.

Over 60% of all respondents (164 out of 273) agreed or strongly agreed that the Directive should also cover defective refurbished or remanufactured products and defective spare parts that cause damage. Among consumer organisations, non-governmental organizations (NGOs) and citizens, 89% (127 out of 149) agreed or strongly agreed and among businesses, the 55% (56 out of 102).

ØPolicy options for adapting the Directive to the digital and circular economy

Regarding the legislative change, respondents had opposite views, with academic/research institutions, consumer organisations and NGOs supporting it while business associations and company/business association opposing it. Overall, 56% (94 out of 168) of respondents (excluding individual members of the public) were in favour of legislative change. Out of this:

·62% (58) were in favour of treating digital content/software as a product in its own right;

·38% (36) were in favour of only covering digital content as a component of a tangible product.

Among individual members of the public, 75% (93 out of 123) replied that the EU should revise the Directive to address the challenges posed by the digital and circular economy.

3.3.Reducing obstacles to making claims and getting compensation

The Evaluation of the Directive found that in some cases consumers faced or could face significant difficulties in claiming and getting compensation for damage caused by defective products.

ØReducing obstacles to getting compensation

Respondents point to difficulties in proving defectiveness and causality in the event of damage due to the technical complexity of certain products. In particular, they pointed to moderate, large and very large difficulties in case of: AI-enabled products (77% or 206 out of 268), technically complex products (77% or 206 out of 268), IoT products (72% or 193 out of 268) and pharmaceuticals (65% or 175 out of 270). Consumer organizations, non-governmental organizations, and citizens were all in agreement when it came to emphasizing such challenges, with 95%, on average, pointing to moderate, large, or very large difficulties for each of these items. Business associations and industries, on the other hand, were less likely to identify such a problem, with 38%, on average, acknowledging such challenges in demonstrating defectiveness and causality in the event of damage caused by the aforementioned products.

ØThe development risk defence

Generally, business associations and industries mostly supported the possibility of keeping the development risk defence unchanged and, on the contrary, consumer organisations and NGOs favoured revising or removing it.

Overall 56% (63 out of 113) of all respondents
[11](#footnote13)
 expressed there should be no change in the defence. On a disaggregated level, among business respondents 81% (56 out of 65) agreed or strongly agreed with this statement, while among non-business respondents a large majority (73% or 35 out of 48) disagreed or strongly disagreed that there should be no change.

On the possibility of removing development risk defence from the Directive, 68% (76 out of 112) of all respondents disagreed or strongly disagreed. Again, the perspectives of businesses and consumer organisations/NGOs were significantly different. 78% (48 out of 65) of the business and industry stakeholders responding to this question disagreed or strongly disagreed that the defence should be removed. Contrarily, 44% (20 out of 46) of non-business respondents agreed and strongly agreed with its removal.

Finally, of the possible changes suggested in the questionnaire, the one that received most support (39% of respondents (44 out of 112) agreed or strongly agreed) was denying the defence for AI products that continue to learn and adapt while in operation.

ØMaking claims

Finally, respondents were asked to assess, among different statements, which circumstances create obstacles to consumers making compensation claims.

Overall, 55% (147 out of 269) of respondents indicated that the EUR 500 thresholds for damage to property creates obstacles to consumers making compensation claims to either a moderate, large or very large extent. While non-business respondents accounted for 89% (131 out of 147), business stakeholders represented the remaining 11% (19).

Furthermore, 51% (140 out of 274) of respondents indicated that the 10-year time limit for death/personal injury creates obstacles to consumers making compensation claims to either a moderate, large or very large extent. Out of this 51%, 89% (125) were non-business respondents, while 11% (15) were business respondents.

Of the features listed, the requirement to start legal proceedings within three years of becoming aware of damage was considered the least significant obstacle to making claims. Overall, only 37% (93 out of 274) stated that this constitutes an obstacle to either a moderate, large or a very large extent.

ØPolicy Options for reducing obstacles to making claims and getting compensation

Respondents showed varied views regarding their support for legislative change to reduce obstacles to making claims and getting compensation. Overall, 53%
[12](#footnote14)
 (or 89 out of 168) of all respondents (excluding individual members of the public) were in favour of legislative change. 75%
[13](#footnote15)
 (or 126 out of 168) of respondents (excluding individual members of the public) agreed with alleviating the burden of proof for technically complex products by obliging the producer to disclose technical information and by allowing courts to infer that a product is defective or caused the damage under certain circumstances (they indicated it as being either their preferred option or second best option).

Among individual members of the public, 78% (96 out of 123) replied that the EU should revise the Directive to address obstacles to making claims and getting compensation under the Directive.

4.What are the views of respondents who replied to the public consultation – Section II on the specific challenges of ai?

The first part of Section II mainly explored what were the stakeholders’ views as regards a) the difficulty for the victim to meet the burden of proof when claiming compensation for damage linked to products and services with an AI element, b) the possible effect of non-adaptation of liability rules to AI on the uptake of AI from consumers and businesses, c) the effects of legal uncertainty and d) those of legal fragmentation.

4.1. Overview of responses regarding problems and problem drivers

This part of the questionnaire from the public consultation explored the perception of the stakeholders on the existence (or not) of specific problem drivers as regards AI liability.

ØProblem driver 1: The specific characteristics of AI make it difficult to meet the burden of proof

The majority of the stakeholders agreed with this problem driver; approximately 67% of respondents agreed (153 out of 227, of which 105 strongly, i.e. ca. 46%) that it could be difficult to link damage caused by highly autonomous AI to the actions or omissions of a human actor. 20% disagreed. In this respect, high agreement was reached amongst responding citizens (84% or 78 out of 93) and almost unanimous agreement (94%, or 31 out of 33, with only one disagreeing) amongst responding consumer organisations, national ministries and academic/research associations.

However, amongst business stakeholders (business associations and companies/business organisations), more disagreed (45% or 38 out of 85) than agreed (36% or 30 out of 85).

Regarding the question whether it could be difficult for victims to prove that the conditions of liability (fault, defect or causation) are fulfilled in the case of opaque and complex AI, 74% of overall respondents agreed (or 167 out of 227, of which 127 strongly). 12% disagreed (26 out of 227). There was overwhelming agreement amongst responding citizens (91% or 85 out of 93) and unanimous agreement amongst responding consumer organisations, national ministries and research institutions. Amongst business stakeholders, the majority in agreement is relative; 41% (or 35 out of 85) agreed, while 28% (or 24 out of 85) disagreed.

Regarding the question whether victims of damage involving AI may in certain cases be less protected than victims of damage involving AI due to AI’s specific characteristics, 61% of respondents (139 out of 232) overwhelmingly amongst consumer organisations, national ministries and EU citizens) also agreed (42 %, or 95 out of 232, strongly) with this problem driver. 23% (or 52 out of 232) disagreed. There was 79% (or 74 out of 94) agreement amongst responding EU citizens and 84% (or 32 out of 38) agreement amongst responding consumer organisations, national ministries, NGOs and research institutions, with only one disagreeing. As concerns business stakeholders, there was an absolute majority which disagreed (54% or 45 out of 85), while 26% (or 22 out of 85) agreed.

The results were similar as regards positions submitted in writing.

ØProblem driver 2: The lack of adaptation of the current liability framework to AI may negatively affect trust in AI

The majority of stakeholders agreed with this problem driver. 60% (or 135 out of 227) of all respondents confirmed the link between a lack of compensation and a lack of trust while 25% (or 58 out of 227) disagreed. 56% (or 126 out of 227) confirmed the link between lack of compensation and a reduced uptake of AI. 27% (or 60 out of 227) did not confirm it. 92% of responding NGOs, consumer organisations, academic/research institutions and EU citizens agreed that the lack of adaptation of existing liability rules to AI may negatively affect a) trust in AI and b) the uptake of AI-enabled products and services. Specifically, the confirmation percentages amongst NGOs and consumer organisations are 89% (or 16 out of 18) for the first statement and 78% (or 14 out of 18) for the second. EU citizens confirmed them by 81% (or 77 out of 95) and 79% (or 74 out of 94) respectively. Among responding national ministries 1 confirmed the problem and 1 denied it.

As regards businesses associations and individual companies, 58% (or 49 out of 85) did not confirm these problems. However, amongst those business stakeholders who considered that AI can make it difficult to claim compensation, 64% did agree that the lack of compensation leads to a lack of trust in AI, and 59% agreed that it leads to reduced uptake of AI.

ØProblem driver 3: Legal uncertainty

Legal uncertainty was also identified as a problem driver by the majority of stakeholders (ca. 63% or 144 out of 227), 36% (81 out of 227) strongly). 22% (50 out of 227) of respondents disagreed (but only 5% (11) strongly). In particular, 84% of responding NGOs, consumer organisations and academic/research institutions (27 out of 32) agreed that it is uncertain whether and how liability rules under national law apply to damage caused by AI and 81% (25 out of 31) of them agreed (77% (13 out of 17) agreement, 0% disagreement specifically for NGOs and consumer organisations) that it is uncertain how national courts will address possible difficulties of proof and liability gaps in relation to AI. The percentages among EU citizens were slightly higher, 85% (80 out of 94) and 91% (84 out of 92) respectively. 2 out of 5 responding national ministries also confirmed the existence of such uncertainty, and only one disagreed.

Just more than half of business stakeholders (52% or 44 out of 85) disagreed with the statement about uncertainty pertaining to “whether” and “how” national law applies to AI-related damages, while around one third (32% or 27 out of 85) expressed uncertainty in this respect. As regards national courts addressing the challenges of AI, views of business stakeholders were similar: 34% (29 out of 85) confirmed uncertainty, while 43% (36 out of 85) did not. In addition, 27% of business stakeholders (23 out of 85) expect additional costs for companies, like legal information and insurance costs, while 20% (17 out of 85) agree that companies may defer or abandon certain investments in AI technologies if the current liability framework is not adapted. 21% (18 out of 85) agree that companies may refrain from using AI when automating certain processes. The percentages for each negative consequence are well over 60% amongst those business stakeholders who confirmed the perception of legal uncertainty.

ØProblem driver 4: Legal fragmentation

Additional costs, at least to some extent, and the need to adapt AI technologies, distribution and cost-management models are anticipated by the majority of all respondents (75% or 153 out of 205, and 70% or 146 out of 205, respectively) in case Member States adapt liability rules for AI in a divergent way, or national courts follow diverging interpretations of existing liability rules in the case of damage caused by AI. Two thirds (67% or 135 out of 203) of the respondents also expect this driver to cause limitations to cross-border AI-related activities, at least for some companies.

Business stakeholders expressed similar views as overall respondents when it comes to the impacts of legal fragmentation: 54% (46 out of 85) expect additional costs (while 15% or 13 out of 85 do not), 36% (31 out of 85) expect reduced cross-border AI-related activities (while 28% or 24 out of 85 disagree), and 39% (33 out of 85) expect a negative impact on AI technologies roll-out (while 29% or 25 out of 85 do not expect such an impact). In addition, 46% (39 out of 85) also expect (but 18% or 15 out of 85 do not) that legal fragmentation will result in a need to adapt AI technologies, distribution models and cost management models. 38% (32 out of 85) think that legal fragmentation regarding liability for AI will lead to higher prices for AI-enabled products and services, while 25% (21 out of 85) do not. The responding individual SMEs (9), and 7 (out of 8) responding business associations representing in particular SMEs, agreed that legal fragmentation can entail additional costs for companies when producing, distributing or using AI-enabled products or services.

4.2. Need for EU action regarding Liability on AI

All responding stakeholders expressed clear support for EU action to introduce AI-specific harmonised measures: 75% (of overall respondents (even 51% of businesses).

4.3. Overview of responses regarding policy options

The second part of Section II of the consultation investigated the stakeholders’ level of support of different policy options.

Ø AI-specific measures to ease the burden of proof under civil liability rules

Responding EU citizens, consumer organisations, academic/research institutions and NGOs overwhelmingly supported the following measures: measures regarding the disclosure of information (87% agreement by EU citizens (80 out of 92); 94% amongst the aforementioned organisations (30 out of 32), with none of the latter disagreeing); inferring facts from the refusal to disclose information (84% agreement by EU citizens (77 out of 92) v. 13% disagreement (12 out of 92); 68% (21 out of 31) amongst these organisations); presuming causality in the case of non-compliance by AI providers with their safety obligations (90% agreement by EU citizens (82 out of 91); 81% amongst the organisations (26 out of 32) with only one disagreeing); presuming causality in the case of non-compliance by AI users with their safety obligations (59% agreement by EU citizens (54 out of 92) v. 9% disagreement (8 out of 92); 65% agreement amongst the organisations (20 out of 31) v. 23% (7 out of 31) disagreement); an alleviation of the burden of proof regarding the functioning of AI systems (88% agreement by EU citizens (81 out of 92); 91% amongst the organisations (29 out of 32) and only one disagreeing.

Business stakeholders expressed more differentiated opinions: They were relatively evenly split (33% agreed (28 out of 86) while 31% (27 out of 86) disagreed) on the disclosure of information, while a majority is against inferring facts from the refusal to disclose information (63% or 54 out of 86), shifting the burden of proof (63% or 54 out of 86), or presuming causality (41% or 36 out of 86, with 30% or 26 out of 86 supporting such a presumption). 35% of business stakeholders (30 out of 86) agreed (while 29% (25 out of 86) disagreed) with a presumption vis-à-vis the user of the AI-system. The few responding individual SMEs approved of these measures, contrary to other businesses.

The position papers submitted in the consultation revealed similar trends: representatives of consumer organisations, citizens and NGOs agree that victims should not bear the burden of proof and there is a need for an alleviation while opinions vary about how this could be done. Business organisations and companies usually do not favour a shift of the burden of proof or state that sufficient alleviations can be granted by courts under existing national laws. In addition, some of these stakeholders caution against an obligation to make technical information available to the victim, because of intellectual property considerations.

ØStrict liability / mandatory insurance for AI use-cases with a specific risk profile

NGOs, academic/research institutions, consumer organisations and EU citizens strongly supported either full or minimum harmonisation of strict liability in cases of AI-enabled products or services that may pose serious injury risks to the public. In particular, 73% of NGOs and research institutions (19 out of 26) favoured the minimum harmonisation of strict liability, while 69% (18 out of 26) favoured the full harmonisation approach. The corresponding percentages for EU citizens were 54% (47 out of 88) and 77% (68 out of 88) respectively. The 7 responding consumer organisations supported only the minimum harmonisation approach. A tendency to favour a harmonised insurance obligation to cover such a strict liability regime, where it does not exist yet, was also identified.

Business stakeholders do not favour the harmonisation of strict liability. Opposition was stronger regarding a minimum harmonisation (70% opposition (59 out of 84) v. 14% support (12 out of 84)) than a full harmonisation approach (42% disagreement (35 out of 84) v. 30% agreement (28 out of 84)). The few business stakeholders that supported strict liability stressed that it should be clearly limited to a few high-risk cases, that the heads of claims should be restricted or that clear exceptions should be laid down. On the contrary, almost all responding individual SMEs (9) approved the harmonisation of strict liability.

ØTypes of compensable harm

Amongst EU citizens, consumer organisations, NGOs and research institutions there was clear support for EU rules prescribing the compensability of pure economic loss (e.g. loss of profit), loss of or damage to data, not covered by the General Data Protection Regulation (Regulation (EU) 2016/679), and immaterial harm (like pain and suffering, reputational damage or psychological harm).

By contrast, business stakeholders were mainly opposed to such rules. Their opposition was strongest regarding the compensability of immaterial harm (63% disagreement (52 out of 83) v. 23% support (19 out of 83) and of data loss/damage not resulting in a verifiable economic loss (75% opposition (63 out of 84) v. 12% support (10 out of 84)). The written contributions submitted by business stakeholders emphasised the very diverse approaches under existing national rules and the concern that harmonisation for AI-related damage would create inconsistent outcomes compared to cases not involving AI.

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:   [(1)](#footnoteref3)

    Out of 78%, 57% (or 70) were business respondents while 44% (or 52) were non-business respondents.
:   [(2)](#footnoteref4)

    Out of 66%, 25% (or 39) were business respondents and 75% (or 115) were non-business respondents.
:   [(3)](#footnoteref5)

    Out of 56%, 43% (or 37) were business respondents while 57% (or 50) were non-business respondents.
:   [(4)](#footnoteref6)

    Out of 55%, 39% (or 33) were business respondents and 61% (or 52) were non-business respondents.
:   [(5)](#footnoteref7)

    Ahead of the question, we provided some information on the current legislative framework plus on the new proposal for a Digital Services Act. However, because of the complexity of the issue, there is the possibility that replied where not fully informed and can thus be biased.
:   [(6)](#footnoteref8)

     Out of 45%, 66% (83 out of 126) were consumer organisations, NGOs and citizens and only 22% (27) were business associations and industries.
:   [(7)](#footnoteref9)

     Out of 29%, 63% (50 out of 81) were business associations and industries and 31% (25) were consumer organisations, NGOs and citizens.
:   [(8)](#footnoteref10)

    While only 31% of business associations and industries agreed or strongly agreed with the statement, 93% of consumer organisations, NGOs and citizens agreed or strongly agreed
:   [(9)](#footnoteref11)

    There were significant variations in the perspectives of businesses and consumers, with only 18% of business and industry stakeholders agreeing or strongly agreeing, compared to 87% of consumer representative associations and citizens.
:   [(10)](#footnoteref12)

    Whereas only 18% of businesses (producers and industry associations) agreed or strongly agreed, 86% of consumer organisations and individuals agreed or strongly agreed.
:   [(11)](#footnoteref13)

    Only respondents with detailed knowledge of the PLD were asked to answer this question, thus individual members of the public were excluded.
:   [(12)](#footnoteref14)

     Out of 53%, 93% (83 out of 89) were business respondents while only 7% (6) were non-business respondents.
:   [(13)](#footnoteref15)

     Out of 75%, 75% (94 out of 126) were business respondents while only 25% (32) were non-business respondents.

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