C Explanatory memorandum
by Mr Altunyaldiz, rapporteur
1 Introduction
1.1 Background
1. The motion for a resolution
(
Doc 14839) underlying this report , which I tabled on 7 March
2019, was referred to the committee on 12 April 2019, following
which the committee appointed me as rapporteur on 29 May 2019. The
committee held a hearing with experts: Ms Theodora Hamsen, German
Federal Ministry of Transport and Digital Infrastructure, Professor
Sahin Albayrak, executive director of the Distributed Artificial Intelligence
Lab (DAI-Lab), Berlin, and Mr Connor Champ, Automated Vehicles/Public
Law Team at the Law Commission, London, at its meeting in Berlin,
Germany on 14-15 November 2019. I would like to thank all three experts
for their contributions to the preparation of this report. I had
intended to conduct a fact-finding visit to a research centre working
on autonomous vehicle technology but unfortunately the restrictions
due to the Covid-19 pandemic made this impossible.
2. Technical progress has already made the circulation of semi-autonomous
vehicles a reality. As noted in the motion, both the increased circulation
of semi-autonomous vehicles and the expected circulation of fully autonomous
vehicles pose questions in relation to criminal and civil liability,
the obligations of manufacturers and the future regulation of car
transportation that will need to be addressed by legislatures in
Council of Europe member States, and beyond. Intertwined with these
legal questions are a number of ethical and privacy concerns that
will also need to be tackled.
3. The race to develop vehicles with increasing levels of autonomy
led to its first fatality in May 2016. A driver who had put his
car into Tesla’s autopilot mode crashed into a large white 18-wheel
truck and trailer crossing the highway which in the bright conditions
it failed to detect. The investigation by the US National Highway
Traffic Safety Administration found that Tesla was not at fault.
Note The first
bystander was killed in March 2018 after a Volvo XC90 that Uber
was using to test its self-driving technology hit a pedestrian.
The car had detected the pedestrian, but its emergency braking system
had been disabled. Prosecutors have determined that Uber is not
criminally liable although it is possible that the backup safety
driver will face criminal charges.
Note
4. The stakes are constantly being raised and assisted driving
technology is constantly developing. However, much technological
and regulatory progress is still required before fully autonomous
vehicles will be commercially available and allowed on the public
roads. The European Road Transport Research Advisory Council (ERTRAC)
predicts that fully automated shuttles and buses operating within
defined urban conditions will not become available until 2030 and
fully automated passenger cars will only be available sometime after 2030.
Note
1.2 Key
concepts – vehicle automation
5. Vehicles equipped with automated
driving systems are often colloquially referred to as “autonomous”. However,
in order to have a complete understanding of the ethical and legal
issues it is important to clarify the distinctions between the different
levels of technology. SAE International (formerly the Society of
Automotive Engineers) has defined six levels of driving automation
in their international standard J3016 for consumers and their classification
has been widely accepted.
Note
6. The levels start at level 0 which refers to vehicles that
are entirely operated by humans and end with level 5 which refers
to vehicles that are completely autonomous in all circumstances,
requiring no human intervention. In between these vehicle classifications
are driver assistance, for example power steering and anti-lock
braking systems (level 1); partial automation, for example automatic
braking systems to sense and prevent imminent collisions (level
2); conditional automation, with the system additionally monitoring
the driving environment and prompting intervention by the driver
(level 3); and high automation, with the system able to control
the vehicle even in the absence of the driver’s intervention (level
4). The technical expression “semi-autonomous vehicles” refers to
level 3 and level 4 automation. My report is principally concerned
with semi-autonomous vehicles, but it will also look into the legal
challenges raised by fully autonomous vehicles (level 5).
7. The current maximum level of vehicle automation that is publicly
available is level 3. These vehicles have environmental detection
capabilities but still require human override. The driver must remain
alert and take control if the system is unable to perform a task.
Level 4 technology does exist in prototype and is currently in testing;
some manufacturers claim that their most recent models already include
level 4 technology, although this appears to be based on a generous
interpretation of the definition and is not accepted by independent experts.
Note These
vehicles are able to intervene if there is a system failure and
do not require human interaction in most circumstances. However,
the driver still has the capacity to manually override. This type
of technology is being used at present but only along predefined
routes and under specific circumstances. For example, shuttle bus
services using level 4 technology are being used in some retirement
communities, university campuses and airports. Complete level 5
automation is not currently possible.
2 Autonomous
vehicles and artificial intelligence
8. Modern autonomous vehicles
are entirely dependent on artificial intelligence (AI) systems.
Advanced sensory systems, notably LiDAR (Light Detection And Ranging)
and radar, provide detailed 360° information on the vehicle’s operating
environment. This information, along with information from satellite
positioning systems and on-board digital maps, must be processed
so that the vehicle can identify its location, plan and follow a
route and recognise and respond appropriately to markings such as
road signs and lines and hazards such as actual and even potential
obstacles in the path of the vehicle, including other road users
(motorised vehicles, cyclists, and pedestrians). This processing
is done by AI machine learning algorithms, trained on huge historical
datasets and constantly refining their own performance through accrued
real-world experience (including that of other vehicles operating
the same system). For level 3 automation and beyond, the AI system will
be in full control of the vehicle for at least some of the time,
and the decisions it takes may be literally a matter of (human)
life or death. As noted above, even at level 3 automisation and
during (theoretically) human-supervised testing of level 4 systems,
fatal accidents have already occurred.
9. Professor Albayrak highlighted an important difference in
how future autonomous vehicles systems may be developed. The best-known
projects – Google’s Waymo or Tesla, for example – involve ‘intelligent’
vehicles driving on ‘dumb’ roads, and thus are entirely dependent
on their own sensing and data processing capacities. Professor Albayrak
is developing a different approach with technology embedded not
only in the vehicle, but also in the road and its infrastructure.
Static cameras and other sensors monitor the road itself and the
traffic upon it, and both this infrastructure and the automated
vehicles themselves form a single integrated system exchanging data
with a central computing system. Professor Albayrak’s research team
is currently experimenting with elements of such a system on a real-life
test-track in central Berlin. The advantages of such an integrated
system in terms of overall traffic management appear obvious, especially
in the context of a dense urban driving environment – although its
fixed infrastructure costs and relative usefulness may make it less
relevant on rural roads, for example. That said, as Mr Champ pointed
out, there are also legitimate doubts about the suitability of level
4/5 systems for driving on small rural roads, where environmental
conditions are quite distinct and challenging in different ways
than in cities.
10. Automated vehicles are, in fact, robots – an essentially self-contained,
computer-controlled machine designed to perform a particular function
autonomously. Giving robots responsibility for transporting human passengers
on the public road network has enormous safety implications. In
2018, there were 268 million cars, over 33 million vans, and 6.6
million trucks on the roads of EU member States;
Note over
25 000 people were killed on those same roads.
Note The
introduction of automated vehicles means putting AI in control of
fast-moving passenger-carrying projectiles in a situation of serious
potential risk to both their passengers and other road users. Obviously,
the expectation is that automated vehicles will prove safer than
those driven by humans. A great deal of regulation and precautionary
action is needed, however, before this can be assured. From a human
rights perspective, therefore, a key consideration will be to ensure
that automated vehicles and the AI systems that control them are
regulated in a way that ensures full respect for the right to life,
including positive obligations to prevent foreseeable threats.
11. The Council of Europe has already begun working on criminal
law issues concerning the application of AI in the context of autonomous
vehicle systems. I will examine this work, which is taking place
in the inter-governmental European Committee on Crime Problems (CDPC),
in more detail below.
12. Alongside the work of the CDPC, in September 2019, the Committee
of Ministers established the inter-governmental Ad Hoc Committee
on Artificial Intelligence (CAHAI). The CAHAI has been instructed
to examine the feasibility and potential elements of a legal framework
for the design, development and application of artificial intelligence.
Its work is based on Council of Europe standards of democracy, human
rights and the rule of law, as well as other relevant international
legal instruments and ongoing work in other international and regional
organisations. Along with the usual participants representing Council
of Europe member and observer States and other Council of Europe
bodies (including the Assembly), the CAHAI has an exceptionally
high level of involvement of representatives of private sector bodies,
civil society, and research and academic institutions.
13. The CAHAI held its first meeting on 18-20 November 2019. Amongst
other things, it decided that a key element of the future feasibility
study would be a “mapping of risks and opportunities arising from
the development, design and application of artificial intelligence,
including the impact of the latter on human rights, rule of law
and democracy”. The CAHAI currently expects to adopt the feasibility
study at its third meeting, scheduled for December 2020.
14. This is the institutional context within which the Assembly
will debate the present and the various other AI-related reports
currently under preparation in different committees. The Assembly
has chosen to approach the topic on a contextual basis, examining
the impact of AI in different areas. Within the Committee on Legal Affairs
and Human Rights, for example, there are also reports on the impact
of AI on policing and the criminal justice system, on brain-computer
interface technology and (in the early stages of preparation) on
lethal autonomous weapons systems. The recommendations that the
Assembly may adopt on the basis of these reports will thus provide
important guidance for the CAHAI when mapping the risks and opportunities
of AI and its impact on human rights, rule of law and democracy,
and subsequently determining the need for a binding international
legal framework.
15. It should also be noted that other international organisations
are also working on the ethical and/or legal regulation of AI, with
varying focus and approach depending on their institutional perspective.
Within Europe, the European Union, for example, has elaborated a
European Strategy on Artificial Intelligence, whose implementation
is supported by a High-Level Expert Group on Artificial Intelligence;
and the OECD has adopted Principles on Artificial Intelligence with
a strong ethical component.
16. Further, general information on AI, including a description
and an examination of the applicable ethical principles can be found
in appendix to the present report.
3 Ethical
concerns
17. The introduction and potential
proliferation of semi-autonomous and autonomous vehicles raise a number
of ethical questions. Driving is not as simple as merely following
the rules of the road. Drivers are regularly required to make what
are, in effect, ethical decisions, particularly in situations of
forced-choice such as certain unavoidable collisions.
Note As the level
of automation increases, so too does the decision-making capacity
and function of the technology. Machines will be programmed with
sophisticated forced-choice algorithms to allow them to make ethical
decisions, such as whether it is better to hit two pedestrians or
two cyclists. The ethical assumptions inherent in such algorithms
can be problematic. There is a debate surrounding the basis of the
decision-making criteria in these algorithms and whether governments
should regulate to standardise these criteria or set a minimum moral
standard. Several factors could be relevant in the event of an unavoidable
crash, such as the number of people affected, the severity and likelihood
of various types of injury, and, potentially, personal characteristics
such as age and disability.
18. A key ethical concern in relation to the development of autonomous
driving technology is that from a commercial perspective, it may
be more beneficial for manufacturers to design vehicles that prioritise
the safety of the car and its passengers, since people may prefer
to purchase cars that will keep them safe. However, from a general
utilitarian point of view, this will not always result in the most
ethical course of action being taken. There is a need to balance
manufacturers’ freedom to innovate and desire to make commercial
gains against general public safety concerns.
19. From a socio-economic perspective, there are concerns about
the accessibility of autonomous driving technology. A key benefit
of the development of autonomous vehicles would be the reduction
of road traffic accidents, since more than 90% of road accidents
are caused by human error.
Note This
should logically in turn result in a reduction in insurance premiums
for owners of semi-autonomous and autonomous vehicles. However,
this new technology is currently only affordable for the wealthiest
members of society, meaning that those from lower socio-economic
classes are more likely to be driving cars that are less safe and
see their insurance premiums rise, at least relatively.
20. Whilst there is broad common understanding, including at the
international level, of the relevance and meaning of the main ethical
principles applicable to autonomous vehicles, the challenge will
be to ensure that this understanding is translated into regulations
that are equally broadly accepted and implemented.
4 Liability
issues
21. In the event that damage is
caused by a semi-autonomous or autonomous vehicle, there will inevitably be
questions as to who can be held criminally or civilly liable and
in what circumstances. The answer to these questions will invariably
depend on the level of driving automation. In relation to level
3 or 4 vehicles, problems with liability are particularly acute
during the transition phases between automated and manual driving
modes. In the case of level 5 vehicles there is also the potential
dispute about whether the final decision on handover or takeover
of control lies with the human driver or the machine.
4.1 Criminal
liability
22. The difficulty of dealing with
the “criminal behaviour” of non-human beings has been identified
by the CDPC as a key concern in modern criminal law.
Note Where a machine and not a human
being is driving the car, there is the risk of the emergence of
a ‘responsibility gap’. The concept of culpability or
mens rea is crucial in European
criminal law systems. Where an accident involves a semi-autonomous
vehicle, apportioning the blame between the driver and the system
can be extremely challenging. At present, in most European states, if
assisted driving technology is in operation and there is an accident,
the driver can still be charged with negligence since they are under
an obligation to monitor the system. In the absence of negligence,
the manufacturer can be held criminally liable. For level 3 and
4 automation, the exact demarcation between when the human driver
is considered responsible (and therefore potentially liable under
criminal law), and when not, will have to be precisely defined in
law on the basis of principles established at the international
level.
23. In the future, if level 5 technology becomes commercially
available, new ways of establishing guilt (criminal liability) will
have to be developed in criminal procedural law, potentially along
with the creation of new offences in substantive criminal law. This
may even raise the question of whether a non-human entity, namely the
AI responsible for driving the vehicle, should be subjected to criminal
law liability, perhaps in a similar way to a corporation may be
liable as a ‘legal person’. Clearly this would have novel very complex
conceptual and legal implications.
24. Moreover, not all questions concerning criminal law and autonomous
driving technology relate to accidents caused by these vehicles.
Decreased driver responsibility could also impact on the applicability
of other offences such as drink driving or using mobile phones while
driving. In this respect, the different levels of driving automation
make it difficult to develop a comprehensive system of regulation.
25. The United Kingdom Law Commission is currently undertaking
detailed exploratory work on the legal challenges posed by the introduction
of autonomous vehicles, including the criminal law implications.
In a series of public consultations, the Law Commission has been
seeking comments on a wide range of issues and proposals for the
future regulation of autonomous vehicles. This work reveals the
wide range of novel and sometimes surprising challenges that arise
in relation to criminal law regulation of autonomous vehicles, for example:
Note
- For level 3 and 4 automation,
where there is still a human ‘user-in-charge’ (to use the Law Commission’s expression),
the problem of driver distraction and resulting lack of situational
awareness and delayed reactions was a predictable problem, but most
comments thought that there should be “no relaxation of the laws
against distracted driving”. Manufacturers, however, “supported
permitting some activities other than driving” for the user-in-charge.
- In the event of an accident occurring when the autonomous
vehicle system was ostensibly in charge, insurers would need access
to data on the event. In the absence of automatic reporting of accidents
(by the autonomous vehicle system itself), the question arose whether
the user-in-charge or insured owner should be required to notify
the accident, and within what timeframe.
- Where the autonomous vehicle system was in charge at a
time when driving rules were breached, the Law Commission proposed
that the matter be referred by the police to a regulatory authority,
with the power to apply regulatory sanctions on the ‘Automated Driving
System Entity’ (a self-selected entity, in practice likely to be
the body that had put forward the automated driving system for regulatory
approval, for example the manufacturer). The question of whether
an AI could be subject to provisions of criminal law that are normally
reserved for human beings, and which depend on concepts of personal
autonomy and moral responsibility, would thereby be circumvented.
- Questions about permissible exceptions to normal driving
rules divided opinion: whether an automated vehicle should ever
be allowed to drive up on to the pavement (for example to allow
emergency vehicles to pass); whether it should ever be allowed to
exceed the speed limit (drivers’ associations thought this could
be allowed, up to a point); and whether it could ever slowly push
forward through a crowd of pedestrians (most comments held that
this should almost never be permitted, although a few considered that
otherwise, autonomous vehicles could too easily be blocked).
26. The CDPC is conducting a multi-year project entitled ‘artificial
intelligence and criminal law responsibility in Council of Europe
member States – the case of automated vehicles’. The concept paper
Note underlying this project opens
with the most pertinent questions, namely: “who will be responsible
if a completely automated vehicle injures or kills a human? With
self-learning algorithms driving a car, the more general question
arises: how should criminal law address Artificial Intelligence
(AI)?” It later notes that “the legal framework currently applicable
to the development and utilisation of automated vehicles (or other
AI deployment) is based on normative principles developed during
the pre-digital era… It could be therefore valuable to set up rules governing
any potential criminal liability in advance to ensure that in cases
such as a car collision or a drone crash, no State will have to
face an unclear legal situation due to unsuitable or out-of-date
rules… As the potential adoption of automated vehicles will affect
all Council of Europe member States and beyond, there is a role
for the Organisation to play in facilitating the general development
of the principles pertaining to AI deployment… several issues should
be addressed including the question of how different approaches
in testing and using automated vehicles can translate into ‘permissible
risks’ not criminalised in domestic law (like the different uses
of technology in cars) as well as the question of whether an automated
vehicle may eventually have to answer to the law as an e-person
(similar to corporations as legal persons) or whether criminal justice
is for ‘human persons’ only.”
4.2 Civil
liability for damages
27. Where a semi-autonomous or
autonomous vehicle causes damage, the victim may want to seek compensation.
In the case of accidents involving conventional vehicles, harm or
loss is generally evaluated in terms of the responsibility of the
road users involved. A system of fault-based liability is in operation
whereby the party who negligently or deliberately violated road
traffic rules is obliged to compensate the party who suffered a
loss. This type of system permits an absence-of-fault defence where
the driver could not have prevented the accident. In the context
of semi-autonomous vehicles there are more possibilities for the
use of this defence when it can be argued that the automation system
was responsible for the damage. Moreover, in relation to fully autonomous
vehicles, a fault-based system of liability would mean that the
vehicle user would never have to compensate a party who suffered
loss, since the operation of the vehicle is completely out of their
control.
28. In order to ensure injured parties can be compensated for
their losses, many are advocating for a system of strict liability.
Thus, even where there is no evidence of fault, the owner or user
of the vehicle would be automatically liable for any damage. In
this case, the existence of automated driving technology would not affect
the owner’s liability. Under such a system the manufacturer could
be required to contribute a portion of the insurance for each vehicle
while limiting their product liability. Another alternative would
be a system of first party insurance whereby the victims in each
vehicle obtain compensation directly from that vehicle’s insurer, while
non-motorised road-users (pedestrians, cyclists etc.) are still
protected by third party liability. In this system, the damage caused
by assisted driving technology would be automatically compensated
by the insurer of the vehicle involved.
29. The suitability of these various regimes will depend on the
degree of vehicle automation. This will indicate how much responsibility
for the damage the driver and the insurer can fairly be expected
to assume given the amount of control the driver had, or should
have had, over the behaviour of the vehicle. In the United Kingdom,
the Automated and Electric Vehicles Act 2018 is an example of good
practice in this area and includes a comprehensive list clarifying
the liability in a wide range of circumstances of vehicle owners
and insurers if an accident occurs.
Note
4.3 Product
liability
30. Since the driver has less control
over the behaviour of a semi-autonomous vehicle than over a conventional
vehicle, often the damage that occurs is the fault of the manufacturer,
who can then be pursued on the basis of product liability. However,
automated driving technology poses a number of specific concerns in
relation to current product liability rules.
31. In terms of the presentation of the semi-autonomous vehicles,
there have already been issues with misleading marketing. For example,
Volvo’s Pilot Assist system was initially advertised under the “autonomous driving”
section of the company’s website, despite the fact drivers were
expected to keep their hands on the steering wheel at all times.
Such errors can mislead customers who do not understand the complexities
of this new technology and manufacturers could be held liable for
any damage caused as a result of such drivers’ reliance on claims
that vehicles are “autonomous”. Manufacturers are only liable for
products that are deemed defective within the bounds of their reasonably
expected use. For this reason, there is a need to incorporate human
factors into the testing of assisted driving technology, as certain
types of careless behaviour are to an extent foreseeable, even with
new technology. Manufacturers can be found liable for damage caused
by a product where it should have been adapted in line with alternative
designs that were available at the time it was marketed. Conversely,
the ‘development risk’ defence means that the producer cannot be
held liable if the defect could not have been known at the time
it was put into circulation, given the state of technical knowledge at
the time. Considering the rate at which assisted driving technology
is evolving it is thus possible that consumers will have to bear
the burden of a number of as yet scientifically unknown risks.
32. In addition, the burden of proof in product liability cases
normally lies with the injured party. However, the complexity of
assisted driving technology makes it incredibly difficult for an
individual or an insurer to prove that a technical fault was the
cause of an accident. This could create an unfair burden on the
consumer. Equally, the extent to which the manufacturer can be held
criminally or civilly liable in relation to victims of accidents
could affect their liability to the consumer for selling a defective
product in line with the ne bis in idem principle.
4.4 Insurance
concerns
33. Insurers are key stakeholders
in the development of assisted driving technologies, since car insurance is
obligatory. They have the power to decide whether or not to insure
semi-autonomous and autonomous vehicles and thereby determine their
commercial viability. Currently insurers are in a difficult position
in terms of setting premiums for drivers of semi-autonomous vehicles,
as although these vehicles are designed to be safer than conventional
vehicles, there are inevitably various new risks and dangers at
play during the initial stages of launching the technology. In the
long-term, however, average premiums are likely to fall due to the reduced
risk of accidents.
34. One way in which insurers can address some of the premium-setting
and liability concerns is through the use of pay-as-you-drive (PAYD)
systems and black boxes. PAYD is an insurance model that uses telematic systems
to calculate premiums according to individual driving behaviour,
and could be employed to ascertain liability. This technology could
be used to monitor the vehicle interior and ensure the driver is
still paying attention even when using assisted driving technology.
PAYD systems are considered fairer as users are charged according
to their own driving behaviour and studies have shown that they
can positively impact on driver behaviour.
Note However, increased
monitoring of consumers in this way also raises privacy and security concerns.
5 Privacy
and cybersecurity issues
35. Semi-autonomous and autonomous
vehicles operate using vehicle-to-vehicle and vehicle-to-infrastructure
communication, sensors and high definition maps. All of this allows
them to learn from other vehicles and maximise safety. However,
all this information also amounts to a significant collection of
personal data, notably data on a vehicle’s (and its driver’s and
passengers’) location. The introduction of biometric features, such
as fingerprint, facial and iris recognition, into vehicles’ security
and other systems also implies the processing and storage of sensitive
personal data. There are still several unanswered questions in relation to
the information systems used in semi-autonomous vehicles such as,
what type of information is being collected and why; who controls
and has access to this information; and how long is it stored for?
Should data recorded by autonomous vehicles prior to and during
accidents be automatically shared not only with the central system,
but also with insurance companies, or the police and other regulatory/enforcement
bodies? Within the European Union (EU), the General Data Protection
Regulation (GDPR) is relevant in this respect.
Note These
regulations apply to all companies processing data from subjects
residing in the EU, regardless of the location of the company. It
is necessary to find the correct balance between fostering innovation
and protecting the privacy of individuals. Effective data protection
regulations, appropriate also to the context of connected, (semi-)autonomous
vehicles, will be an important and necessary part of the overall
regulation of autonomous vehicles.
36. Putting a computer in charge of a passenger vehicle also gives
rise to cybersecurity concerns. Hackers could potentially take control
of a vehicle through wireless networks, such as Bluetooth, keyless
entry systems, cellular or other connections. The dangers of hacking
would be particularly high in relation to a level 5 vehicle where
the human driver – or in this case, rather a passenger – is not
required to oversee or intervene in any of the driving tasks. Moreover,
the data hacked would be financially valuable and could be sold
on to third parties. Thus, securing the information systems used
in assisted driving technology should be a priority.
6 Current
regulation in Europe
37. All Council of Europe member
States have their own regimes for regulating autonomous and semi-autonomous
vehicles. Many countries, such as Germany and the United Kingdom,
have developed specific laws on assisted driving technology, while
others apply existing laws for conventional vehicles to semi-autonomous
vehicles. Notwithstanding, there are also a number of international
and regional instruments that are relevant. In the area of the specification
of vehicle safety requirements it can be argued that the relative importance
of specific national law is reducing rapidly, particularly within
European Union States.
38. As Mr Champ pointed out, there is already a “lot of law” at
various levels of jurisdiction surrounding road vehicles. This law
covers a host of issues including insurance, product liability,
international vehicle standards, criminal liability for driving
offences, civil penalties for driving infractions, roadworthiness
standards and procedures, consumer information and marketing standards,
driving licences, accident investigation procedures, data protection
regulations, regulation of the taxi and private hire markets, regulation
of public service vehicles, general traffic regulations (rules of
the road), etc. This law was developed with non-autonomous vehicles
in mind, or at most those with some driver assistance features,
under the constant control of a responsible human being. This division
– between driver and vehicle – is now breaking down, and new laws
and regulations will have to decide whether safety assurance for
automated driving should focus on the driver or the vehicle. In
some cases, the technology itself will largely resolve this dilemma,
notably when it comes to fully autonomous vehicles with no user-in-charge
(or at most, a remote supervisor able to take decisions in exceptional
circumstances).
39. At an international level the Vienna Convention on Road Traffic
of 1968 deals with general traffic law. It has been signed and ratified
by 38 Council of Europe member States.
Note Article
8.5 and Article 13 state that all drivers must be able to control
their vehicle at all times. In 2016 a new paragraph was added to
Article 8 of this Convention to make provision for automated vehicles.
Note As a result,
autonomous and semi-autonomous vehicles will be considered to be
in conformity with the Convention provided the system can be overridden
by the driver or it fulfils the requirements of the United Nations
Economics Commission for Europe (UNECE) Agreement of 1958 and the
Global Technical Regulations (GTR) Agreement of 1998.
40. The 1958 UNECE Agreement was established to facilitate the
adoption of uniform conditions of approval of motor vehicle equipment
and parts across Europe. The GTR Agreement of 1998 was designed
to create a global process for this type of approval that was applicable
to countries from all regions of the world. A directive was adopted
at EU level to ensure that once vehicles or vehicle components are
certified in one member State, they cannot be excluded from markets
of other States unless there is sufficient evidence that it would
be seriously threatening to traffic safety.
Note This Directive
makes large use of the UNECE Regulations for vehicle safety rules.
41. In 2018 the UNECE set up a dedicated Working Party on Autonomous
and Connected Vehicles (GRVA). This group helps to mobilise expertise
from key industries together with civil society in order to realise
the vision of new sustainable mobility and support the mass introduction
of autonomous vehicles on the roads. There are also a number of
Informal Working Groups (IWG) on specific vehicle safety issues.
The IWG on Automated Commanded Steering Function (ACSF) proposed
amendments to UNECE Regulation 79 in order to include provisions
on ACSF technology.
Note The
adopted amendments include that in case of an ACSF intervention
the driver must be able to gain control of the vehicle within four
seconds; immediate override is required and the vehicle must be
able to stay in lane, keep a distance and handle rear impact scenarios
on highways.
42. The EU has also adopted instruments regulating the appropriation
of risk in relation to the use of motor vehicles. The two main legislative
acts governing liability are the Motor Insurance Directive and the
Product Liability Directive.
Note Substantive
rules on liability for damages resulting from motor vehicle accidents
are not harmonised at an EU level. The Motor Insurance Directive
prescribes only minimum third-party liability insurance. Autonomous
vehicles fit the definition of “vehicle” set out in Article 1 of
this Directive and so will automatically be covered by its provisions.
Note The
Product Liability Directive sets out rules relating to the liability of
producers and the rights of consumers. It is based on a no-fault
liability regime, meaning that the producer of a defective product
must provide compensation for personal injuries caused by their
product irrespective of the negligence of an individual.
Note The presentation of the product,
the product’s reasonably expected use and the time when it was put
to market are all influential in determining whether it is “defective”.
Note There is a limited list of derogations
that can waive product liability.
Note However, this Directive only covers
liability of producers of defective products, which may not be sufficient
to deal with producer’s liability for injuries caused by autonomous
and semi-autonomous vehicles. In addition, under this regime the
cost of scientifically unknown risks would be shouldered by the
injured party.
43. Ms Hamsen told us the approach to regulation of autonomous
vehicles being taken by the authorities in Germany, the European
country with the largest vehicle manufacturing sector. Since 2017,
road safety legislation has allowed up to level 3 automation, which
in some cases did not require the driver’s intervention. This legislation
was beneficial for the car industry, as it provided clarity and
security for investments. The legislation makes clear when the human
driver may be subject to ‘adapted’ obligations to pay attention
to traffic, and on what preconditions. If the conditions are not
satisfied, the driver remains responsible in case of an accident.
The technical preconditions include a system capable of respecting
the normal traffic rules and regulations that a human driver would
have to observe. The system must be described in international regulations
that are applicable in Germany, or an application made for exemption
under EU legislation. There are not yet any applicable international
rules on autonomous vehicle systems; the GRVA (see above) is expected
to make proposals but, according to Ms Hamsen, will probably not
complete its work until next year. If the manufacturer’s technical
description of the system states that the vehicle has level 3 automation
and is able to comply with traffic regulations, then its driver
is permitted to cede control of the car to the autonomous vehicle
system – although the driver must still be able to monitor the situation
and be able to resume control should the preconditions for reliance
on the autonomous vehicle system no longer be fulfilled.
7 Conclusions
and recommendations
44. The circulation of semi-autonomous
vehicles is likely to increase significantly in the coming years
as the technology becomes more advanced and more reliable. Some
even believe it possible that within the next decade a completely
autonomous vehicle will have been developed. These vehicles have
the potential to transform personal mobility and dramatically improve
road safety. At this stage, it will be technically possible to create
autonomous vehicles that will never be “at fault” in an accident
(except in cases of malfunction) and that will even be able to avoid
most or all collisions that would be the “fault” of the other vehicle
(or its driver), or of a pedestrian or cyclist. In a world where
not all cars will be autonomous, autonomous vehicles programmed
to avoid any collision will not be able to advance very quickly
at all, as they will be “cut off” regularly by other, non-autonomous
vehicles under the control of less cautious, human drivers. In order
to give guidance and legal certainty to the engineers, legislators
will have to “set the cursor” somewhere: should autonomous cars
be programmed to assume that other road users will respect traffic
rules too? What about children? Last but not least, when autonomous
cars will be far safer than even the best and most attentive and unimpaired
human driver, should legislators forbid non-autonomous vehicles?
Would they even have a positive obligation to do so, in order to
protect the right to life under Article 2 of the European Convention
on Human Rights (ETS No. 5)?
45. Since vehicles regularly cross borders, the future regulation
of autonomous vehicles should be developed with a global vision
in mind. This should take into account the perspectives of all regions
and the work being undertaken in different contexts around the world.
The various international bodies, each working within its area of
specialisation, should take account of one another’s activities
in order to ensure a harmonious and comprehensive overall result.
Those working specifically on regulation of autonomous vehicles
should pay particular attention to the general regulatory principles
and legal frameworks being developed for AI, and should conduct
a specific human rights impact assessment of autonomous vehicle
technology in order to anticipate the issues that may arise.
46. The Council of Europe is already attentive to aspects of autonomous
driving that fall within its institutional mandate. By concentrating
on criminal law aspects of autonomous vehicles in particular, and
on the impact of AI on human rights in general, the Organisation
plays to its strengths and can make an important contribution to
the ongoing debate. One of the purposes of my report is to feed
into this process. I therefore propose that the Assembly should
underline the development and implementation of autonomous vehicles
as one of the areas in which AI systems may have a particular impact
on human rights and democratic societies. This should be taken into
account by the CAHAI when mapping risks and opportunities of AI
and the need for a binding legal framework to regulate its development
and operation.
47. Further recommendations appear in the attached draft resolution
and recommendation.
