Artificial Intelligence (AI) has evolved dynamically in the past decade. The use of AI has spread to various areas of our society, and people benefit from it in various ways.
Lawyers also do not stand aside from this process. A modern lawyer uses AI in work processes as searching and sorting a huge amount of information, establishing communication with clients, in case management, etc.
At the same time, however, the growing role of Artificial Intelligence in the modern world generates questions that have legal consequences, which have not answered by the law yet. To be more precise, the law is late for technology. As a result, lawyers are forced to find solutions to arisen issues, by not having the law governing the area of AI.
In this article we are going to focus on one of the most important legal question in the area of AI. Namely, who is liable for Artificial Intelligence errors?
Companies actively use AI lately for creating products, providing services, in advertising campaigns. There are heated discussions among experts regarding legal liability for damage caused as a result of the work of mechanisms equipped with AI.
We currently don’t have a clear answer to the question of who has to be liable in a situation where a product equipped with AI caused an accident, injury, or damage. Who shall be liable for damage, the developer of the AI, the manufacturer of the goods or the owner of the product? It is also important to know how liability should be established for damages, and what legal standard should be applied in cases related to Artificial Intelligence.
Determination of liability is a priority in those areas where AI takes from people the functions of controlling machines or processes. As an example, the area of using autopilot mode in cars and other vehicles.
According to Tesla’s statement, since April 2019, every Tesla will be supplied with autopilot as a standard function.
The largest car companies are investing billions of dollars in the development of autopilot technology. In 2018, Audi announced that they would spend $ 16 billion on the development of fully auto-piloted vehicles until 2023. Amazon will spend $ 530 million to create an unmanned vehicle. Therefore, it is clear, that in the coming decade most new cars will be equipped with autopilot.
The United States One is a pioneer in resolving disputes involving Artificial Intelligence. As an example, let’s take a look at the case Lommatzsch v. Tesla Inc et al, which is heard in the Third District Court of Salt Lake County, Utah, USA.
In this case, the plaintiff claims that he purchased the Tesla Model S, which was equipped with the autopilot function. In advertising campaigns, the manufacturer stated that when using the autopilot, in the event of an obstacle, the car shall stop on its own. When the plaintiff was traveling on this car, the autopilot was turned on. The autopilot function did not properly work, and the car rear-ended another car.
Tesla attorney Ryan McCarthy states that, the plaintiff did not properly use the autopilot. The attorney also alleges that, the driver did not pay attention to the road all the time, did not keep his hands on the wheel, and used the autopilot in the wrong place. According to the attorney’s statement, Tesla’s diagnostic data shows that the plaintiff removed his hands from the wheel more than a minute before the accident. Thereby, the plaintiff violated the instructions for driving the car by using autopilot mode.
This case is still pending, and it is too early to talk about legal conclusions. The court’s opinion will be informative for lawyers interested in IA.
There are no special legal rules regarding liability for the damage caused by Artificial Intelligence in Ukrainian law. Even in more technologically advanced countries, like the USA, such legislation has not yet been adopted.
One way to settle the questions on liability caused by AI is to enter into the contract between the developer of AI and the manufacturer of the product in which AI is used. In this contract, the parties may determine the terms and conditions on liability, the procedure for compensation for damage caused, and other issues.
In order to minimize the risks, the manufacturer of the goods can determine in the contract with the buyer of the goods that it is not liable for the damage caused by the product equipped with AI, thus shifting the responsibility to the buyer. Accordingly, the buyer remains unprotected and is liable for damage in full.
For example, Tesla specifies the following wording in its instructions:
However, the contract does not resolve the issue of liability for harm caused to third parties. After all, a contract is binding only for its parties, and a third party suffered is not bound by the obligations of the contract, since he is not a party of it.
This example shows that the contract law is not able to resolve all issues regarding responsibility for the damaged caused by AI. Therefore, these questions should be handled by the legislator.
Let’s take a look at the situation with the damage caused by the autopilot-driven car. Ukrainian law, in this case, clearly makes the driver responsible for causing harm. Even despite the fact if that the cause of the accident may be a defect in the autopilot system.
The Traffic Rules determines that it is the driver’s responsibility to monitor the traffic situation, react to its changes, monitor the technical condition and not be distracted from driving the vehicle on the road.
In addition, pursuant to the Traffic Rules, the owner of the car is only permitted to transfer the control over the car to another person who has a driver license. The transfer control to the autopilot is not permitted. As a result, by transferring the control over the car to the autopilot, the driver violates the Traffic Rules.
In general, the harm caused to a person or his property shall be reimbursed in full by the person who caused it. In addition, it is also required that the person’s conduct was unlawful and an actual causal connection between the defendant’s conduct and the resulting harm.
Article 1187 of the Civil Code determines that damage caused by a vehicle shall be compensated by the person who owns the vehicle on the appropriate legal basis.
“In my opinion, in the case of autopilot, the law should provide a fair and proportional distribution of liability between the owner of the car and its manufacturer for the damage caused by this car, when the car was controlled by the autopilot at the time of the accident. After all, such a basic element of liability as a “fault” is present, both in the manufacturer’s actions and in the actions of the driver.
In the case of the manufacturer, by equipping the car with an autopilot, the company cannot be 100% sure of the autopilot’s trouble-free operation. After all, you will agree that at the current stage of development of AI, it is not possible to ensure 100% reliability. Accordingly, by selling these cars, the manufacturer deliberately allows for the possibility of accidents, that is, it acts with risk, which can be considered as a negligence. In addition, advertising companies for the sale of cars do not reveal all the possible risks associated with the work of the autopilot and encourage to purchase of these cars. In the case of Lommatzsch v. Tesla Inc et al, according to the plaintiff’s statement, it was Tesla’s manager who assured the buyer of the safety of the autopilot operation, which was the reason for its use.
On the other hand, the driver, using the autopilot function, relies on it but in fact the driver shall allow for the possibility of a system failure. Moreover, ignoring by the driver of special instructions from the manufacturer, requiring controlling the movement of the car with the autopilot, is considered as negligence.
Regarding Ukraine, it should be taken into account that the Rules do not allow to the driver to transfer driving to autopilot. In this regard, the driver will be responsible for the damage. “
Summarizing the above, it is obvious that the legislator needs to move faster for technologies, adopting the relevant legislation, including those relating to the work of Artificial Intelligence. Necessary actions should be taken already. A lot of questions may arise regarding the criminal law qualification of the actions of the driver, driving the car in autopilot mode, who caused the accident.
This problem can be solved by adopting the necessary regulatory acts and making changes to the traffic law. It is also important to determine in the Civil Code the procedure for the distribution of liability for damage caused by AI among AI developers, manufacturers of goods equipped with AI, as well as users of such goods.
The urgency of this issue is growing fast due to increase the number of cars equipped by the autopilot and the purchase of such cars by Ukrainians. According to the Main Service Center of the Ministry of the Interior reported that as of mid-2018, there were 382 vehicles registered under the Tesla logo in the country.
It is predicted that in Ukraine the number of cars equipped with autopilot, will increase every year. As a result, we will face with disputes arising out of damage caused by such vehicles.