updated on 05 December 2017
QuestionWhat are the legal issues related to autonomous transportation?
A driverless vehicle could be soon coming to a road near you with a number of car manufacturers already testing prototypes in the United Kingdom. Some companies plan to mass produce driverless cars and have them in commercial operation by 2021, and globally by 2025 the driverless technology industry is expected to be worth £900 billion. This poses a question as to what legal issues face the future of transportation.
An autonomous car is a vehicle that is capable of sensing its environment and can therefore guide itself without human conduction. Various sensors dotted around the car monitor the position of other vehicles, traffic lights, road signs, pedestrians, road markings and curbs. A central computer then analyses this data to manipulate the steering, acceleration and braking.
Autonomous cars have the ability to eliminate death and injury caused by driver error, which is currently blamed for 90% of road traffic deaths. Every day 3,500 people are killed on the road, which equates to nearly three people per minute (and more than 50 million people have serious injuries). The most common causes of traffic accidents are failure to look properly, failure to judge another person’s path or speed, and driving carelessly, recklessly or in a hurry. However, can we trust this technology to largely eliminate death and injury caused by driver error? The Eno Centre for Transportation in the United States concluded that if 90% of cars on American roads were autonomous, the number of accidents would fall by almost 80%.
However, in May this year, Joshua Brown was killed when his vehicle, operating in autopilot mode, was unable to distinguish a white truck against the brightly lit sky. This meant that the self-driving system failed to apply the brakes resulting in the car hitting an articulated lorry. Although this accident will cast doubts over the safety of the technology, manufacturing companies have been quick to highlight that this is the first fatality in 130 million miles of autopilot driving. If you compare this figure to regular driving, which incurs one fatality per 94 million miles in the United States, it would appear that autonomous cars are still safer. It is also important to remember that autonomous cars are still in the testing phase.
Therefore, autonomous cars may substantially reduce the number of accidents, but they will not be able to eliminate all deaths and injuries as mistakes will still happen.
Other associated advantages include increased mobility for the elderly who are often judged unfit to drive, the disabled who may be unable to drive and the blind; greater access to vehicles for these individuals will enhance their quality of life. In addition, people will have time to spend on other things, as the average worker spends 200 hours a year commuting.
The latest technology comes at a cost and at present it is astronomically expensive to buy an autonomous car, with vehicles currently priced between $71,200 and $109,200. A recent study forecasts that the price for self-driving technology will add between $7,000 and $10,000 to a car’s sticker price in 2025, a figure that will drop to around $5,000 in 2030 and about $3,000 in 2035. However, these costs will drastically decrease when manufacturing companies start to benefit from economies of scale and technology also becomes much cheaper the longer it is available. In the future, autonomous cars could eventually be something that everyone can afford.
Another associated disadvantage is the potential for it to go wrong. Software often has bugs and errors – just think about the glitches in mobile phone updates. We cannot afford for the programmes that run these cars to have any bugs, errors or a faulty string of code as it could potentially cause fatal car accidents. Another disadvantage is the potential job losses for taxi drivers, lorry drivers and bus drivers who would all become unemployed.
However, with these disadvantages in mind, it is important to remember that technological advancements have brought us more good than harm, even with the associated risks.
When an autonomous vehicle is involved in an accident there will be a number of civil, criminal and product liability issues that will arise.
In the United Kingdom, civil law requires drivers to exercise the same standard of care of a reasonable person (ie, a competent and careful driver). Under criminal law, a driver could also be held liable under Section 2 of the Road Traffic Act 1988 if they drive a “mechanically propelled vehicle dangerously”. Therefore, a driver could be negligent under both civil and criminal law. However, these laws are based on the assumption that there will be a human driver in control of the vehicle. If criminal offences for drivers fall away, car manufacturers will need to be very careful as they may be held criminally responsible if they do not comply with safety rules. The United Kingdom will therefore need to update the law to reflect these technological advancements. Clear issues that need to be addressed include:
Under the Consumer Protection Act 1987, the producer of a product is liable for any “defective products”. The producer is the manufacturer of the finished product or of a component of the finished product. A product is defective if its safety is not such as persons generally are entitled to expect. This has led manufacturers to say that they will accept full liability for accidents involving its driverless unless a human has used the technology in an inappropriate way. Most of these vehicles will also have the capability to operate in both autonomous and non-autonomous modes. Therefore, in the event of an accident it will be vital to determine who was in control of the vehicle (ie, the human driver or software) and ultimately responsible for the accident. To address the product liability issue above it may become industry standard to install “black box” devices to these vehicles which records and analyses various aspects of how, when and where you drive. This information will be vital when a collision occurs to attribute fault accordingly.
Autonomous vehicles will collect an array of information such as the identity of the driver, the start and end points, travel route, time and date of travel, and speed. These vehicles will also share data with each other. This poses a question as to data ownership. In the United Kingdom personal data must only be obtained for a specified lawful purpose, it should be relevant and not excessive, and it must be kept securely and for no longer than is necessary. Owners of these vehicles will need to know what data their vehicle is collecting, what it might be used for and that manufacturers, insurance companies and law enforcement agencies will want to have access to this data in certain circumstances. Manufacturers, who are most likely to store the data, will need to ensure that they have systems in place to minimise the impact of data breaches and to comply with their legal and reporting obligations or they will be penalised.
Software systems are often vulnerable to cyber hacking. In 2015 Charlie Miller and Chris Valasek, who are security researchers, exploited a security issue with the mobile wifi system available in some autonomous vehicles. They used a laptop to control in-car systems such as the audio volume, air conditioning and windshield wipers. However, the most worrying thing was that they were able to bring the vehicle to a stop on the highway. In the hands of hackers or terrorists, the technology in these vehicles could put human lives at immediate risk. These threats would need to be countered by putting high security measures in place and criminal sanctions to deter these attacks.
When contacting an insurance company for an insurance policy, the company focuses on the customer’s age, where he/she lives, his/her behavioural patterns when driving and his/her history of accidents when determining the insurance premium. This could all change. If we move to fully autonomous vehicles, manufacturers may be fully liable for accidents and therefore a driver would not need insurance. However, it is most likely that drivers will be under an obligation to keep their vehicles in a good state of repair and fully maintained in accordance with the manufacturer’s recommendations.
What is more likely is that many of these vehicles will have the ability to switch between automatic and manual features. In this instance, a driver would still need to retain some form of insurance, as they will still have a degree of control and responsibility.
Autonomous vehicles are going to have a big impact on the insurance industry. Insurance companies will need to have clarity on how responsibility and liability is going to be determined in the event of an accident. Therefore it is important that insurance companies work alongside manufacturers and the government to adopt the correct frameworks to deal with autonomous vehicles.
Although there are many advantages and disadvantages associated with these vehicles, the most significant challenges facing this industry are legal issues and public acceptance and tolerance.
Legally, the United Kingdom is already ahead of many other competitor countries as they are not bound by the 1968 Vienna Convention on Road Traffic, which allows them to test driverless cars. However, in order to ensure that the United Kingdom continues to lead the way in this developing industry, legislators must act now to ensure that legal, regulatory and compliance standards are in place which deal with these technological advances. If all manufacturers adopted a decision to accept liability, arguably legislation could be made simple.
Public acceptance and tolerance will need to be gained to ensure that this industry thrives and reaches it true potential. Although the accident outlined above is likely to erode public trust in the technology, it is important to remember than even in its infancy, the technology for autonomous vehicles has arguably surpassed the safety of human drivers. Perhaps we should all ask ourselves the following:
Marie Fegan is a second-year trainee in DLA Piper’s Leeds office.