Legal aspects of “autonomous” vehicles
- Parliamentary Assembly
adopted by the Standing Committee, acting on behalf of
the Assembly, on 22 October 2020 (see Doc. 15143, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Ziya Altunyaldiz).See also Recommendation 2187 (2020).
1 The circulation of semi-autonomous
vehicles on European roads is likely to increase significantly in
the coming years, with some believing it possible that completely
autonomous vehicles may become available within the next decade.
These developments pose questions in relation to criminal and civil
liability, the obligations of manufacturers and insurers and the
future regulation of road transportation. Important ethical and privacy
concerns also arise.
2 In the case of a semi-autonomous vehicle operating under the
proper control of an automated driving system (ADS), or of a fully
autonomous vehicle, criminal law is not designed to deal with the
conduct of non-human actors. This may create a “responsibility gap”,
where the human in the vehicle – the “user-in-charge”, even if not
actually engaged in driving – cannot be held liable for criminal
acts and the vehicle itself is operating according to the manufacturer’s
design and applicable regulations. This may require new approaches
to apportioning criminal liability, or alternatives to criminal
liability in cases where no human can reasonably be held responsible.
3 Similar concerns apply to civil liability for damages incurred
by a vehicle operating under the proper control of an ADS. Current
fault-based liability regimes may leave the user-in-charge absolved
of any liability, with responsibility being shifted to the ADS.
This may require new approaches, such as strict liability, to ensure that
injured parties receive compensation for the damage they suffer.
4 In cases where road traffic regulations are violated by a
vehicle under the proper control of an ADS, whether it is the commission
of a criminal offence or causing damage to third parties, the responsibility
of the manufacturer may raise issues of product liability. The complexity
of autonomous vehicles, however, may make it difficult to prove
the existence and nature of any technical fault. Again, it is important
that future regulations do not leave lacunae in this respect.
5 These concerns are closely related to ethical issues that
arise in relation to autonomous vehicle technology. Human drivers
are regularly required to make ethical decisions, including forced-choice
decisions of life and death. ADSs will have to make the same decisions,
but according to an ethical framework that was defined by their
manufacturer. Given that the purchasers of autonomous vehicles may
prefer that priority is given to their own safety, competitive market
pressures on manufacturers may not generate outcomes that are optimal
from a general utilitarian point of view. There may certainly be
a need for government regulation to standardise the ethical choices
implicit in ADS design, to ensure compatibility with the general
6 ADSs are data-dependent and data-generating, including sensitive
personal data relating, for example, to an individual’s movements.
The data from autonomous vehicles is automatically shared with other autonomous
vehicles and with a central system and may, in certain circumstances,
need to be shared with regulatory and law-enforcement bodies. Particular
care will be needed to ensure a correct balance between data processing
that is necessary for the safe operation of autonomous vehicles
and respect for and protection of the privacy of drivers, passengers
and other users.
7 Modern ADSs are distinguished by their reliance on artificial
intelligence (AI) systems; indeed, modern autonomous vehicles are,
in effect, robots. The introduction of autonomous vehicles means
putting AI-controlled robots in charge of fast-moving projectiles
in a situation of proven, serious potential risk to their passengers
and other road users. The expectation is that autonomous vehicles
will have the potential to be significantly safer that those driven
by humans. Appropriate regulation will be needed to realise this
potential. As a starting point, this regulation must ensure full
respect for the right to life; including positive obligations to prevent
foreseeable and avoidable threats.
8 The Parliamentary Assembly considers that ethical and regulatory
standards applicable to AI in general should also be applied to
its use in autonomous vehicles. It therefore considers that the
work of the Ad hoc Committee on Artificial Intelligence (CAHAI)
on a possible legal framework for AI will be especially significant and
notes the important contributions to work in this area of other
international organisations, including the Organisation for Economic
Co-operation and Development, the European Union and United Nations
9 Once fully autonomous vehicles, designed to respect road traffic
regulations and avoid collisions, become available, the legislator
will have to solve the problems resulting from their coexistence
with vehicles driven by humans who may not always respect the rules.
The democratic legislator will have to decide on the most appropriate
balance between minimising the number of accident victims and allowing
for an efficient flow of traffic.
10 The Assembly concludes that the above considerations give
rise to a variety of novel challenges for regulatory regimes. It
takes note of the work underway in specialised regulatory bodies,
including the Working Party on Automated/ Autonomous and Connected
Vehicles (GRVA) of the United Nations Economic Commission for Europe,
which is addressing a range of essential technical issues, as well
as the European Union and different national authorities. It further
notes the work within the Council of Europe on “Artificial intelligence
and criminal law responsibility in Council of Europe member States
– the case of automated vehicles” underway in the European Committee
on Crime Problems (CDPC).
The Assembly therefore calls on:
11.1 the member States of the Council of Europe to ensure that
the criminal law, civil law and human rights implications of the
development and introduction of autonomous vehicles are regulated
in accordance with Council of Europe standards on human rights and
the rule of law, including respect for the right to life, privacy
and the principle of legal certainty;
11.2 the GRVA to conduct a human rights impact assessment as
part of its preparatory work on the future regulation of autonomous
vehicles, as part of a general, comprehensive framework for ensuring that
safety is fully maximised during future development and production
of autonomous vehicles;
11.3 the CDPC to ensure that possible lacunae in the applicability
of criminal law to the operation of autonomous vehicles are identified
11.4 the CAHAI to pay particular attention to the application
of AI in ADSs, where there is a particular risk of adverse consequences
for the enjoyment of fundamental human rights, in its mapping of
the risks and opportunities of AI and its examination of the feasibility
of a legal framework.