Autonomous Intelligent Cars on the European intersection of liability and privacy
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Interim observationsRules regarding the information privacy of EU citizens are strictly protected within the European Union and will become more stringent in the near future. The privacy regime creates a framework in which at the same time intercommunal trade is facilitated, while consumers’ privacy rights are guaranteed, also when data of EU citizens are exported to non-EU countries. Strong safeguard of information privacy, and transparency with regard to the rules are observed to form a driver for consumers’ trust, and their adaptation of new services. At the same time, the current – and forthcoming regime(s) may form a challenge for development of autonomous intelligent cars to be equipped with for instance tracing mechanisms. It is for instance not (yet) clear which measures are considered appropriate for the protection of personal data, to be taken by controllers and processors, for assessing these measures is left to the individual regimes of Member States. On a national level, also co-regulation and policy instruments are used in this respect, which does not necessarily contribute to transparency and legal certainty. In combination with a) uncertainty regarding the final text of the GDPR and b) for instance the high fines that can be imposed after the GDPR will come into effect, could be observed to form a challenge for AIC developers.
The development and deployment of Autonomous Intelligent Cars in the European Union can contribute to the EU ambitions of innovation and growth. It is foreseen that this developments towards a fully autonomous vehicle will take place in several steps. Eventually, AIC can be defined as vehicles capable of perceiving data and information, which are able to learn and make decisions based upon their experience, used for transportation of goods or people to a certain destination without the need of human intervention. Autonomous intelligence implies legal challenges. With regard to liability law, it is observed that autonomous decisions of a vehicle can be an extra factor in assessing the cause of damages following from accidents in which AIC are involved. Autonomy will make it harder to pinpoint the factors and their respective shares in the origination of damage inflicting situations. Establishing causation often is crucial for determining liability for damages, unless a (strict/no fault) liability regime allocates liability irrespective of damage causing behaviour. The Product Liability Directive states as a general rule that producers are liable for defects in their products causing damage. This is not a ‘pure’ strict liability regime, which is illustrated by the fact that there are several defences a producer may invoke, and that liability of the producer may be reduced or disallowed when the injured person contributed to the causation of damages. The non-harmonized regulatory frameworks of the Member States on liability for accidents in which motor vehicles are involved vary from strict no fault liability systems (France) to negligence based systems (England). Most EU jurisdictions have incorporated causation principles for determining liability to a certain extent. AIC may form a complicating factor in this respect, for it may become harder to predict liability risks for producers, and inter alia drivers, third parties and their insurers. Legal uncertainty with regard to liability risks can form a hurdle in the development of AIC technology, and at the same time to the adoption and acceptance of autonomous vehicles by EU citizens. A practical solution proposed by insurance companies and developers of AIC, is to employ certain forms of tracing technology in autonomous vehicles. That technology will be used 1) to assist in avoiding damage causing accidents, and 2) in assessing the exact causation of accidents. However, such technology may have severe consequences for the information privacy of those people inside and around AIC. Without properly addressing these questions, consumers’ trust in this technology may not be encouraged. Furthermore, this could lead to liability of producers. A legal solution to the indicated causation challenge could be that applicable liability frameworks are optimized on a European level, in the sense that these will be enabled to address allocation of liability questions in which autonomous intelligent technology is involved. The question remains how the regulatory framework should be optimized, which a) provides incentives rather than hurdles for innovation, which b) will stimulate the acceptance of AIC, thus being beneficial to the economic goals of the EU, which at the same time c) takes into account the core values of inter alia fair apportionment of risks, consumer protection and (other) fundamental rights of EU citizens. That question is too complex to be answered in this paper. It would need more extensive research to identify for instance on which level(s) regulation and enforcement should be installed. An optimal mix should be sought of in? top-down regulation (EU- in combination national regulation) and alternative forms of inter alia soft-regulation in the form of self- and/or co-regulation, industry norms and standards and (ethical) codes of conduct, in which all relevant stakeholders are able to participate. 1 Roeland W. de Bruin LL.M. is Jr. Assistant Professor at the Centre for Access to and Acceptance of Autonomous Intelligence, Molengraaff Institute for Private Law, REBO-faculty, Utrecht University, and IT-lawyer at Mitopics B.V. 2 B. Walker Smith, Human error as a cause for vehicle crashes, Center for Internet and Society at Stanford Law School, 18 November 2013, via http://cyberlaw.stanford.edu/blog/2013/12/human-error-cause-vehicle-crashes. 3 http://www.oecd-ilibrary.org/sites/factbook-2013-en/06/02/03/index.html?contentType=&itemId=/content/chapter/factbook-2013-50-en&containerItemId=/content/serial/18147364&accessItemIds=&mimeType=text/html, also cited in Gillian Yeomans, Autonomous Vehicles – handing over control: opportunities and risks for insurance, LLOYD’S 2014, via https://www.lloyds.com/~/media/lloyds/reports/emerging%20risk%20reports/autonomous%20vehicles%20final.pdf, (Yeomans 2014) p. 5. 4 See M. de Cock Buning, L. Belder & R.W. de Bruin, Mapping the Legal Framework for the introduction into Society of Robots as Autonomous Intelligent Systems, CAAAI-working paper, p. 3-4, available via http://www.caaai.eu/wp-content/uploads/2012/08/Mapping-L_N-fw-for-AIS.pdf, and the references to S. Chopra and L.F. White, A Legal Theory for Autonomous Intelligent Agents, Ann Arbor: University of Michigan Press 2011, p.10 (autonomy) and Davies, C.R., ‘An evolutionary step in intellectual property rights – Artificial intelligence and intellectual property’, Computer Law & Security Review 27, 2011, p. 601-619 (intelligence). 5 See M. de Cock Buning, ‘The History of copyright protection of computer software, the emancipation of a work of technology towards a work of authorship’, in: Handbook The History of Information Security (Reed Elsevier International), August 2007, p. 121-140. 6 See M. de Cock Buning, ‘Auteursrecht en informatietechnologie, over de beperkte houdbaarheid van technologiespecifieke regelgeving’, (dissertation), Amsterdam: Otto Cramwinckel 1998, and M. de Cock Buning, De mediamachine als zevenkoppig monster (inaugural lecture Universiteit Utrecht), Otto Cramwinckel: Amsterdam 2006. 7 An option also mentioned in Yeomans 2014, p. 18. 8 See Communication from the Commission “Europe 2020, A strategy for smart, sustainable and inclusive growth”, COM(2010) 2020 final. 9 http://ec.europa.eu/research/innovation-union/index_en.cfm?pg=why (accessed 17 March 2015). 10 http://ec.europa.eu/digital-agenda/. 11 Communication […] “Horizon 2020 – The Framework Programme for Research and Innovation”, SEC(2011 1427 & 1428 final, COM(2012) 808 final (Horizon 2020). See also http://ec.europa.eu/digital-agenda/en/robotics. 12 See for example Yeomans 2014, p. 5. Also A. Pawsey & Ch. Nath, “Autonomous Road Vehicles”, Parliamentary Office of Science & Technology, POSTnote no. 443, September 2013 (POSTnote 2013), p. 1. Available via http://www.parliament.uk/briefing-papers/post-pn-443.pdf; and E. Palmerini e.a., D 6.2, “Guidelines on Regulating Robotics”, 22 September 2014 (RoboLaw 2014), p. 42. 13 See for example S. Le Vine & J. Polak, Automated Cars: A smooth ride ahead?, Paper for the Independent Transport Commission, February 2014, p. 14. Via http://www.theitc.org.uk/docs/114.pdf. 14 See W. Cunningham, “Six reasons to love, or loathe, autonomous cars”, CNET.com 8 may 2013, via: http://www.cnet.com/news/six-reasons-to-love-or-loathe-autonomous-cars/. 15 http://en.wikipedia.org/wiki/Google_driverless_car, referring to Matt O’Brian, “Google's 'goofy' new self-driving car a sign of things to come”, Mercurynews.com, 22-12-2014, via http://www.mercurynews.com/business/ci_27190285/googles-goofy-new-self-driving-car-sign-things. 16 See for instance https://www.media.volvocars.com/us/en-us/media/pressreleases/145619/volvo-car-groups-first-self-driving-autopilot-cars-test-on-public-roads-around- (Volvo), http://www.pcmag.com/article2/0,2817,2387524,00.asp, (Volkswagen) http://www.bbc.com/news/technology-25653253 (BMW). 17 See http://www.scania.nl/about-scania/media/platooning/ (accessed 20 March 2015). 18 See http://blog.caranddriver.com/volvo-has-a-production-viable-autonomous-car-will-put-it-on-the-road-by-2017/. (accessed 20 March 2015). 19 See http://www.motorauthority.com/news/1096521_germany-plans-autonomous-car-test-program-on-high-speed-autobahn. (accessed 20 Marh 2015). 20 These phases and their descriptions (listed in the table), are cited/minimally adapted from POSTnote 2013, p. 2. These are also used in for example Yeomans 2014, p. 7. 21 See also J. Stapleton, Product Liability, London: Butterworths 1994 (Stapleton 1994), p. 61. 22 ECJ 25 april 2002, C-52/00 (Commission/French Republic), paragraph 29, also cited in a similar context in C. van Dam, European Tort Law, Oxford: Oxford University Press 2006 (Van Dam 2006), p. 371. 23 The PLD is not generally considered to provide a strict liability regime, since it leaves room for producers to exonerate themselves based on defenses as to the non-discoverability of defects, and the possibility to reduce liability based on fault (contributory negligence) by consumers of defective products. See also Stapleton 1994, p. 236-237. 24 Article 12 PLD. 25 See the –non-numbered – considerations of the Product Liability Directive. 26 Article 12 PLD as well as the considerations at this point. 27 Article 2 PLD. 28 Article 6(1) PLD. 29 Article 4 PLD. 30 Article 3 and 5 PLD. 31 Article 9(b) PLD. 32 Article 7(b) PLD. 33 This is a minimum-harmonization provision, allowing states to take regulatory measures allowing the establishment of liability for producers even when can be proved that a defect could not have been discovered based on the state of the scientific and technological knowledge at the time a product was put into circulation, see Article 15(1)(b) PLD. 34 Article 7(e) PLD. 35 Stapleton 1994, p. 239. 36 Stapleton 1994, p. 242. 37 ECJ 29 May 1997, C-300/95, Commission/United Kingdom. 38 Idem. 39 Fourth report on the application of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999, COM(2011), 547 final, (Fourt Report PLD) p. 9-10. 40 Idem. 41 See Van Dam 2006, p. 266-268. 42 Its attempt was to harmonize rules on liability for damages caused by motor vehicles to (non-motorized) cyclists and pedestrians, see Van Dam 2006, p. 369. 43 See for an overview: http://ec.europa.eu/finance/insurance/legislation/index_en.htm#maincontentSec8. 44 Directive 2009/103/EC Relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability 45 See A. Tunc, “The ‘Loi Badinter’ – Ten Years of Experience, Maastricht Journal of European and Comparative Law, vol. 3, 1996 (Tunc 1996), p. 329-311. 46 See Tunc 1996, p. 330. 47 See Tunc 1996, p. 333: “… it is often difficult, practically, to judge it [the victim’s behaviour, RW] and decide whether it was impeccable, erroneous or faulty. Most of the time, the circumstances of the accident are not clear enough to permit a judgment”. 48 See for a overview of case law on this point Van Dam 2006, p. 360, footnote 28. 49 See Van Dam 2006, p. 360. 50 Tunc 1996, p. 335. 51 Tunc 1997, p. 335. 52 See for instance T. Hartlief, “Hoofdstuk 5 Aansprakelijkheid voor motorrijtuigen”, in: J. Spier, T. Hartlief, A.L.M. Keirse, G.E. van Maanen and R.D. Vriesendorp, Verbintenissen uit de wet en Schadevergoeding, [AANVULLEN], (Hartlief JAAR), p. 165-166. 53 Supreme Court of the Netherlands 22 May 1992 (ABP/Winterthur), NJ 1992/527. 54 Supreme Court of the Netherlands 31 May 1991 (Marbeth van Uitregt), NJ 1991/721. See also Supreme Court of the Netherlands 1 June 1990 (Ingrid Kolkman), NJ 1991/720, furthermore Hartlief JAAR, p. 163-164. 55 Supreme Court of the Netherlands 2 June 1995 (Marloes de Vos e.a.), NJ 1997/700-702, and 5 December 1997 (Saïd Hyati e.a.), NJ 1998/400-402. The notion of ‘Betriebsgefahr’ is borrowed from the German Straβenverkehrsgesetz. 56 Roberts v. Ramsbottom [1980] 1 WLR 823, also cited in Van Dam 2006, p. 364, footnote 52. 57 Henderson v. HE Jenkins & Sons and Evans [1970] AC 282, cited in Van Dam 2006, p. 364, footnote 53. Van Dam further takes notice of Worsley v Hollins [1991] RTR 252 (CA), in which the judges held that the victims claim for negligence failed, for the defendant could prove that although his braking systems failed causing damage, his minibus was recently serviced and passed the MOT. 58 Cited in Van Dam 2006, p. 365, footnote 57, referring to Reg. 3 of the Pedestrian Crossing Places (Traffic) Regulations 1941, replaced by the Zebra Pedestrian Crossing Regulations 1971, SI 1971, No. 1524. 59 Van Dam 2006, p. 375 notices that “it is hard to establish contributory negligence of young children under the age of 7”. 60 See for example J. Pelkmans & A. Renda, “Does EU regulation hinder or stimulate innovation”, CEPS Special Report No. 96/2014 (Pelkmans & Renda 2014), p. 8. 61 K. Horsey & E. Rackley, Tort Law, Oxford: Oxford University Press 2013, p. 363. 62 See for instance Yeomans 2014, p. 15, 18, and also A. Sharman, “Driverless cars wait for green light”, FT.com, 8 December 2014, via http://www.ft.com/cms/s/0/6572716e-7565-11e4-a1a9-00144feabdc0.html#axzz3TbnUD5DB (Sharman 2014). 63 Yeomans 2014, p. 18. 64 Yeomans 2014, p.18. Also Sharman 2014. See furthermore J.M. Anderson and others, Autonomous Vehicle Technology – A Guide for Policymakers, RAND Transportation, Space and Technology Program 2014, (RAND-report), p. 94-95. 65 RAND-report, p. 81. 66 Idem. 67 S. Warren & L. Brandeis, “The Right to Privacy”, Harvard Law Review no. 4, 193, 1890. 68 See for a different view for instance R. Finn & D. Wright, “Seven Types of Privacy”, Selected works of Michael Friedewald 2013 (Finn & Wright 2013), via http://works.bepress.com/cgi/viewcontent.cgi?article=1070&context=michael_friedewald (last accessed on 11 March 2015), who distinguish between Privacy of: the person; behaviour and action; communication; data and image; thought and feelings; location and space; and association. See also D.J. Solove, Understanding Privacy, Cambridge (Mass.): Harvard University Press 2008 […]. 69 This text differs a little from article 8 of the European Convention of Human Rights, which is also applicable in all EU Member States. 70 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. For an overview of the applicable EU regulatory framework on data protection, see http://ec.europa.eu/justice/data-protection/law/index_en.htm. 71 See for the proposed text of the General Data Protection Regulation http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf. See for the most recent amendments (last accessed on 12 March 2015): http://lobbyplag.eu/governments/gdpr. 72 See for instance preambles 1-11 to the DPD. 73 See also the Position Paper by Ecommerce Europe, “Privacy and Data Protection, Safety and Transparency for Trust and Consumer Centrality, 2014] (Position Paper 2014), p. 3. 74 Art. 3(1) DPD. 75 Art. 2(a) DPD. 76 Art. 2(b) DPD. 77 Art. 2(d) and (e) DPD. 78 Art. 6(1)(a) DPD. 79 Art. 6(1)(b) DPD. 80 Art. 7 DPD. 81 Art. 8 DPD. 82 Art. 23 DPD. 83 Art. 28 DPD. 84 Art. 17(1) DPD. 85 See for instance Richtsnoeren Bescherming Persoonsgegevens 2013, via https://cbpweb.nl/nl/richtsnoeren-beveiliging-van-persoonsgegevens-2013. 86 Art. 25 DPD. 87 See 2000/520/EC: Commission Decision of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce, via http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000D0520:EN:HTML. 88 In Germany, car manufacturers (Verband der Automobilindustrie) are developing “Data Protection Principles for Connected Vehicles”, which may eventually form input to a specific legal basis for the processing of vehicle data. See https://www.vda.de/en/topics/innovation-and-technology/network/Data-Protection-Principles-for-Connected-Vehicles.html for a recent version of the Principles. 89 See also: http://europa.eu/rapid/press-release_MEMO-14-186_nl.htm (accessed 17 March 2015) Directory: wp-content -> uploads -> 2015 2015 -> Police Militarization 2015 -> 2015 ihbb championships: hs history Bowl Round 4 – Prelims First Quarter 2015 -> Wrtp/big step · 3841 W. 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