This article was originally published in Business Law Magazine.
Autonomous cars have the potential of changing transportation and connectivity drastically. Not only would road safety, mobility and traffic efficiency increase, but also costs and emissions be reduced. Being an innovation of global scale, this technology is endangered by legal challenges and the lack of uniform regulations nationally and internationally. While there is no uniform definition, an autonomous car has been defined as "a vehicle enabled with artificial intelligence and technology that have the capability of operating or driving the vehicle without the active control or monitoring of a natural person" by the consortium of universities funded by the EU working on the "RoboLaw" project.
There are various stages of automation. The first stage is commonplace assisted driving (such as a car equipped with adaptive cruise control or park assist). The second stage is partial automation (such as traffic jam assist), being the current stage of technology. The third stage is high automation, where the car can handle the majority of driving tasks and is in control over a certain period of time and/or pre-set use cases; the driver can divert his attention to other matters (such as eating), but still needs to be awake and ready to take over control at any given time. Finally, the fourth stage is full automation that can drive the passenger independently to a location, rendering the driver almost obsolete. An active discussion between the different stakeholders has started, if and to what extent a change of the laws and regulations is necessary in order to align with this transformative technology.
The first legal hurdle is the introduction of automated cars into the current regime of traffic and safety regulations locally and globally.
The Vienna Convention currently governs
The Vienna Convention on Road Traffic from 1968, a treaty ratified by 73 countries worldwide, is one of the most important sources of legislation.
It contains provisions on the behavior of drivers as well as general licensing requirement for cars. Article 8 para 1 requires every moving vehicle to have a driver. According to Article 1 a driver is "any person". Article 13 stipulates that "every driver of a vehicle shall in all circumstances have his vehicle under control so as to be able to exercise due and proper care and to be at all times in a position to perform all maneuvers required of him". These regulations are not compatible with any form of higher automation. This hinders the introduction of a technological development, which is inevitable and groundbreaking. Luckily, in March 2014 a new paragraph was added to Article 8, allowing more advanced driver assisting systems (such as adaptive cruise control) to be implemented and used, as long as the system can be overridden or switched off by the driver. Still, this only constitutes a level of regulation barely providing for partial automation, systems above this limit are still not implementable under these regulations.
Necessity of innovation
The laws need to change to promote innovation in this space. This can be seen as a serious impediment for development, testing and eventual use of higher automated cars in those countries that have ratified the Vienna Convention. Therefore, further amendments are necessary to keep up with the new technology and not become a limitation to possibly life-saving and environmental friendly systems.
Further, such restrictive regulations can constitute competitive disadvantages for a jurisdiction, as other countries have more liberal regulations on testing of autonomous cars. Thus, sizeable economic harm can be expected, if either no changes are implemented or the countries affected have to leave the convention.
US and UK
The application of the Vienna Convention does not include the United States and the United Kingdom. Accordingly, each has implemented legislation allowing for the testing of automated driving. In the US, for example, the specific regulations vary significantly in the four states that have enacted such rules (i.e the necessity of including insurance or a surety bond of up to $5 million or a special license plate). Similarly, the UK, although being signatory of the Vienna Convention, is free of its restrictions. The UK government recently published a code of practice for testing, which is non-statutory and shall act as a guideline for testing autonomous cars in the UK. As long as they have a test driver, who can take responsibility in case and the car itself is compatible with road traffic law, testing is allowed.
The reforms undertaken by the US and UK focus on the testing phase and leave open the production or introduction of autonomous cars.
A possible amendment to Vienna Convention could be, that parallel to the rules for drivers, another type of person, taking part in traffic, is introduced: a so called "vehicle user". A vehicle user would be a person, who is not subject to the same requirements stipulated in Article 8 a driver has to fulfill. This person could be anybody who is capable of and seen fit (mentally) to give directions to an autonomous car, thus excluding and preventing children from giving directions, for example, and still retaining the benefit of increased social inclusion by enabling physically disabled people to use cars independently — something that might not have been possible before. This would disengage the regime applicable to autonomous cars from less automated ones, resulting in a clearer distinction between the two and allowing for better regulations.
As can be seen in the requirements of the UK code of practice and Vienna Convention, there is the necessity of a driver. It seems that the reason for this is the second field of contention between technological progress and legislation: who is liable in case of an accident?
Most legal systems differentiate between three forms of liability: driver, owner and product liability.
Jurisdictions worldwide tend to regulate driver liability typically as negligence to hold drivers liable for their actions. Should this not be the case, then there is the strict liability for the owner. The owner of the vehicle is held liable in case of any accident, or traffic offence, except for certain cases like force majeure or if the driver is not the same as the owner and can be held liable pursuant to applicable product liability laws. If the accident can be traced back to a manufacturing defect, a general design fault of the vehicle or incorrect/missing instructions as to the use of it, then the manufacturer may be held liable product liability can be invoked. Looking at product liability in the European Union, the law is widely harmonized, being a system of strict liability. The same goes for most of the US and other jurisdictions.
The fear of product liability claims arising out of accidents, especially such where the driver did not need to pay attention, but wouldn't have crashed otherwise, could present a major obstacle for development and subsequent sale of autonomous cars, as manufacturers could be deterred from doing so. There needs to be a balance of policy and regulation so as to not stifle innovation.
Future development of the law
At the highest level of full automation driver liability may be insufficient or even inapplicable, shifting the liability to the owner and manufacturer only. However until such a final high automation phase the current liability system should be retained and gradually evolve alongside the technological development. A full substitution of driver and owner liability through product liability alone up until high automation would needlessly shift the burden from the driver/owner of a car towards the manufacturer. The driver of even a highly automated car still needs to be attentive and supervise the car. The owner's liability does not find its basis in negligence at all and is thus regulated as strict liability, as the idea of social responsibility for setting a danger by keeping a car itself is accepted. Certainly, there is the necessity to hold manufacturers and their suppliers responsible with increasing automation, though the current regime of product liability is still wide enough to deal with all stages to come until high automation, excluding autonomous cars.
With increasing automation and possibly more product liability claims ensuing from (less) accidents, one encounters a conflict between liability and data protection law: the interest of the driver/owner to data privacy versus the manufacturer's need to access data in the car. The crunching of this big data is used to improve the experience for the autonomous car. In order to provide for even partially automated driving, GPS data, internet access and data about the cars condition are needed, as well as to defend against said claims. These are currently not accessible under most countries data protection law, as they are counted to the personal sphere of the driver/owner. Therefore, the necessity of softening data protection law or retaining such an approach may become a prerequisite for any form of higher automation and in order to defend against unjustified liability claims directed towards manufacturers.
- The Vienna Convention is tantamount, though antiquated, in spite of recent amendments and thus in dire need of further innovation
- The current system of liability should be retained and gradually evolve
- Widening the scope of product liability is inevitable, but should not entail a substitution of aforementioned systems
- Automation requires softening data protection law for viability and liability issues.
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