On Friday 27th of November 2020 there was a Scientists’ Night – an event dedicated to popularization of science. This year it is dedicated to the topic “Human and Robot” and for this reason associate professor Filip Melzer spoke about “Responsibility for damage caused by autonomous systems”. Filip Melzer is well known Czech lawyer who works at the department of Private Law and Civil Process, Faculty of Law at the Palacký University in Olomouc. In his presentation he put special emphasis on autonomous cars despite the fact, that there are also other autonomous systems where reaction of Czech legal order is slightly different.
Issues related to autonomy
His presentation started with explanation of the autonomous systems – what it is and various level of autonomy: starting from 0) – without automatization, just providing warnings to 5) full automatization when a driver is just setting destination and then goes. In between these two are four other levels: 1) Assistant of the driver – best characterized by “hands on” approach, 2) partial automatization “hands off” when a driver I just observe a traffic and control system, 3) conditioned automatization “eyes off” where a driver is not required to observe a traffic but hall be prepare to retake control in certain period of time and 4) high level of automatization “mind off” – car is automatic except dangerous environment – for example dangerous weather. Above mentioned degrees have implications for legal responsibility for damage.
In majority of legal systems, the responsibility is based on a legal subject who is driving a car and thus responsible for a damage. But in the case of autonomous system, the subject is missing because the person going in the autonomous car is not controlling it. Especially in the Anglo-Saxon World, there is ongoing debate on how to set up the responsibility and related conditions. In his contribution prof. Melzer focused on the prism of Czech law in the context of the law of the EU. European Parliament focused on areas which are necessary to develop in order to create appropriate regulation. These areas involves the issue of ensuring safety of the traffic (harmonizing the compatibility with non-autonomous systems – e.g. pedestrians and non-automatic cars); set-up the measures for responsibility (adapt legal environment whether is responsible a driver or a car producer); to ensure safe data processing (as there will be exchange of sensitive data which might be misused – e.g. during cyberattacks); and to clarify ethical aspects (it is necessary to create specific ethical standards) land to develop necessary infrastructure.
Czech legal order is applicable in the areas of contractual liability (especially §2913 – violation of the contractual liability) and tortious liability. In certain situation autonomous vehicle may break down and create and obstacle in preventing fulfilment of the contract. In this case user of the autonomous vehicle was unable to influence technical state of the system. In this sense broken car might be understood as an obstacle on the side of the user and there is no guilt of the user. However, user is responsible for fulfilling his/her obligations as he/she is responsible for his/her own operation and autonomous vehicles are part of the personal operational sphere. Broken car thus can not lead to liberation of personal responsibilities to fulfil obligations.
Regarding tortious liability there are some historical examples which are like the current situation in which there is some “hidden danger” related to the operation of the vehicle having roots in the technical nature of the things. Good examples how to solve contemporary issues are various Railway acts, Car acts, Aviation acts from 19th or 20th century focusing on issues like objective responsibility, liberation due to force major (external chance intervening), compulsory insurance etc. Historically, the responsibility for damages goes to the user who really has control over the car (not to the owner). For example, since 1950s Czechoslovakia had an Act on the responsibility caused by the traffic vehicles. In the current legal order might be applicable §2924 Damage caused by operating activity – allowing responsibility liberation when proper care was conducted. Then there is §2925 on a damage caused by a particularly hazardous operation – despite proper care there is a higher risk. In case of some risk in using autonomous vehicle, then this paragraph will apply and liberation is possible only when the damage was caused by force major with external origins and proper care was maintained. Then there is §2927 on Responsibility over transport tools which is principally same and is very similar to tools with particularly hazardous operation.
In case of hacker attack on autonomous vehicles it might be considered as external influence. If this hacker will cause damage and the user (or producer) will have no tools or measures to influence it, then he/she is liberated from the responsibility which is transferred to the hacker. In case of bad software downloaded into the car and as a consequence there will be an accident, it is very similar situation like tanking low quality petrol. It is becoming part of the personal operating activity and thus liberation is not possible because it is not external inference, but rather internal based on he user’s decision.
Towards possible solutions?
According to Melzer the system which combines objective responsibilities of the operator together with the compulsory insurance is well working. And because it is working well for non-autonomous vehicles it will work also for autonomous vehicles. Overall, Melzer is positive about legal aspects of regulation as there are very similar examples in history and legal principles are universal and technically neutral. However, despite that it is necessary in Czech case to set up standard of safety, set up protecting responsibilities for the operators and the user (technical control, licences…), to determine to what degree the operation is safe and to set up compulsory insurance (linked to the ownership) based on type of the operation. According to Melzer, there shall be direct link between responsibility for damage and prevention: the operators shall be motivated to invest in quality and prevention. In this sense responsibility motivates operators to care.
There are also some specific issues regarding set-up of the algorithm for crisis management. Shall there be preferred passenger of the vehicle? How to minimalize damage? What about ethical dilemmas? And what about self-learning autonomy of vehicles? In reality drivers are behaving in the supreme emergency and reaction is based on instincts. However, autonomous vehicles shall have clear programme and instructions involving dilemmas solution. Another issue is information about accidents which are useful for operators and producers. Shall be placed in the cars “a black box”? And what shall black box recording? How the data from the black box will be used and who has right of access? This is having implications for victims as well as for insurance companies.