The time when we could be truly alone in our cars is irreversibly gone. Since the first piece of software was introduced in them, they have become a new entity that is more than just a means of transportation. Cars have begun to analyse our behaviour as drivers and passengers and assist us. GPS navigation, automatic gearboxes and parking assistants have already become commonplace. As the transition of cars from a hardware-driven machine to a software-driven machine continues, the phenomenon of connected and autonomous vehicles is gradually appearing on our roads. Such vehicles are supposed to carry out, by themselves, complex tasks traditionally reserved for persons (drivers and vehicle owners). The existing legislation on the status of these persons as well as the regulation of the operation of motor vehicles thus have to reflect this shift of tasks and deal with a completely new mode of the functioning of their subject matter. In this article, we will look at how the outlined problems are addressed in Germany, which is probably the most advanced in this respect out of all the countries in Europe. The above-mentioned dynamics also have not escaped the attention of the European Commission and other EU institutions, which perceive it as a major challenge (and potential risk) to their key automotive industry. The main incentive behind their initiatives is, in addition to an emphasis on road safety and consumer protection, the fear that their carmakers will share the fate of the former Finnish mobile communications hegemon – Nokia. We will therefore also focus on the initiatives at the European level.
The German Way
It is no surprise that Germany is the European leader in the regulation of autonomous vehicles. Due to the size of its economy and the importance of the German automotive industry, it is quite natural. Germany has already adopted an appropriate regulation that allows automated driving. At the instigation of the German government, a code of ethics for driverless cars was also drawn up.
First of all, it must be emphasized that the German legislation does not allow the use of fully autonomous vehicles on German roads. A driver must still be present in the vehicle and be ready to take control immediately, (1) when called upon to do so by the vehicle itself, or (2) as soon as the driver recognizes or should recognize due to obvious circumstances that the conditions for the use of the system of automated driving as set by its manufacturer are not being met.
The law thus requires the manufacturer to define precisely the conditions for using automated driving. This is very important in terms of liability for damage caused by the operation of the vehicle. If the automated driving is used under the conditions specified by the manufacturer and still fails, the manufacturer is responsible for the damage thus caused. However, if the damage occurs when the driver is to take control (see above), he or she will be fully liable. It should be noted that the strict liability of the vehicle owner is maintained under German law even if the driver is not liable.
For the purposes of deciding on the liability for damage, the black box of the vehicle should serve as evidence. This black box should store the vehicle's operation data and its conditions, including the use of automated driving and takeover of control by the driver. The law also sets deadlines for retaining the data thus obtained and for subsequent deletion. This should ensure personal data protection and guarantee the right of the vehicle users to privacy.
As noted above, German initiatives are not limited to changes in legislation. The German government also set up a 14 member committee of engineers, lawyers, philosophers and theologians, who dealt with the ethical issues of autonomous vehicle operations. The result of their work is a code of ethics containing 20 directives. This concerns, among other things, the issue of final control of the vehicle. The committee has clearly stated that the driver must always be able to take back control of the vehicle, even if it increases the likelihood of an accident. This conclusion was based on the consideration that people cannot be obliged to succumb to machines. The committee has also addressed cases when the artificial intelligence will have to deal with extreme situations when the lives of several people are threatened. In this regard, it built on the assumption that the lives of everyone have the same value. Therefore, in such extreme situations, the machine cannot choose between the lives of individuals, for example to endanger the lives of its passengers to prevent a collision with a child. In such cases, the autonomous vehicle should only brake intensively to avoid collision or mitigate its impact. These principles can largely serve as a basis for further legal regulation of the operation of autonomous vehicles.
European initiatives in the field of autonomous vehicles
There is no coherent legal framework for the operation of autonomous vehicles at the European level. This of course constitutes an obstacle to the development of autonomous vehicles. As already outlined in the introduction to this article, the automotive industry is crucial for the European economy. It is therefore in its best interest to catch up with the United States and Japan. This is why the Dutch Presidency of the Council of the EU in the first half of 2016 set the issue of connected and autonomous vehicles as one of its priorities. This is also how the Declaration of Amsterdam entitled “Cooperation in the field of connected and automated driving” was adopted and signed by all of the Ministers for Transport of the EU Member States. Based on the Declaration, a common EU agenda for the development and deployment of connected and autonomous vehicles in Europe was defined in a uniform manner to ensure the security, reliability and continuity of services across EU Member States. The Member States should identify and, where possible, remove legal barriers to the testing and deployment of connected and automated vehicles, based on a learning-by-experience approach. The European Commission decided to review, and where necessary, adapt the EU regulatory framework to support the development and use of automated and connected driving, respecting the principle of subsidiarity. It also decided to develop a shared European strategy on connected and automated driving, based upon the shared objectives of the Declaration. Following this, the European Commission issued the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – A European Strategy on Cooperative Intelligent Transport Systems, a milestone towards cooperative, connected and automated mobility (the EU C-ITS Strategy).
It is necessary in this respect to draw attention to the new EU legislation – the General Data Protection Regulation (GDPR), which shall come into force on 25 May 2018. The basic aim of this regulation is to increase the standard of the protection of EU citizens' personal data and to respond to the challenges posed by the development of information technologies in this field. The primary legal reason for the processing of personal data should be the informed and freely given consent of the data subject. The data subject must therefore always know to what exactly he/she agrees. When assessing whether consent is freely given, utmost care shall be taken regarding whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent with the processing of personal data that is not necessary for the performance of that contract. Finally, the data subject must have the opportunity to withdraw the given consent at any time. These essential requirements will also have to be met by the manufacturers of autonomous vehicles. The ways to do so are not only when purchasing the vehicle, i.e., in a sales contract and related documentation. The vehicle itself will need to be set up so that it is able to communicate with its users in sufficient detail, provide them with an overview of the data being processed and allow them to stop further data transmission.
The last significant event in the field of connected vehicles at the European level was probably the introduction of the eCall system. From April 2018, it is mandatory for this system to be installed in all passenger cars and light vans certified for the European market. In the event of a serious accident, this system ensures that victims receive the best possible aid. This should be the case even if there is no one at the scene of the accident who could call the European emergency number, 112. The system allows not only the dialling of the emergency number manually, directly from the vehicle cabin, but a connection will also be established automatically if the vehicle sensors (e.g., an airbag) are triggered. The system will also send basic information on the circumstances of the accident (location, direction of travel, number of passengers, etc.). The eCall system should thus increase the effectiveness of the emergency system. At the same time, however, it presents a potential risk from the point of view of personal data protection. For these reasons, it should be dormant during normal operation and no data will be transmitted under such conditions. In addition, the transmitted data should be strictly limited by the purpose of the system – the proper handling of emergency calls.
Finally, private initiative at the European level needs to be mentioned. In September 2016, the European Automotive-Telecom Alliance (EATA) was established. EATA brings together six leading sectorial associations, as well as 37 companies, including telecom operators, vendors, automobile manufacturers and suppliers for both cars and trucks. EATA’s main goal is to promote the wider deployment of connected and automated driving in Europe. The initial test phase should focus on three main areas: automated driving, road safety and traffic efficiency and the digitalization of transport and logistics.
The purpose of these programmes is to discover in which way individual companies could move in the near future and what technologies to invest in. Specific needs for legislative changes should also be articulated.
The technologies covered by this article are still in the development phase. The current legislative work and the related initiatives as described above are aimed mainly at removing obstacles to this development, i.e., to allow the gradual deployment of these technologies in regular transport (albeit in a test mode). However, basic issues such as the protection of personal data and road safety together with liability for damages incurred must be addressed from the beginning. Future developments will have to address additional issues. The automotive industry itself is transforming radically. Technology companies from Silicon Valley are establishing themselves as indispensable partners of well-known carmakers from Europe, America and Asia. These new dynamics will also bring with them legal aspects. Especially with regards to the protection of the industrial property and know-how of collaborating partners in possible joint ventures. Similarly, the issue of the operation of autonomous vehicles will have to be addressed by insurance companies (liability insurance for damage caused by their operation).
* David Štamberk is an associate at the PETERKA & PARTNERS law office in Prague and specializes in the IT sector, intellectual property and in litigation and insolvency. Mr. Štamberk can be contacted at email@example.com