The Sun (Malaysia)

Driverless cars – the legal challenges

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A DRIVERLESS car is typically defined as a fully autonomous vehicle (AV) that can drive itself from door-to-door without a human operator and is equipped with internet access. Whilst it may be a few more years before AVs can be fully deployed, the concept is no longer a matter of “if” but “when”, as evidenced by Tesla and pilot projects in the US and Singapore.

It is not surprising why many countries, including the UK and China are working on regulating such vehicles, especially as the use of AVs would result in benefits including improved road safety, reduced emission and congestion, increased productivi­ty and access to mobility.

In this article, we explore three main legal issues that may arise with the introducti­on of driverless cars.

Allocation of Liability In vast majority of car accidents, liability is usually attributed to the driver rather than the design features of the car, given that the driver is generally considered to have control of the car. However, when an AV crashes, the liability would arguably be an issue of product liability such that responsibi­lity is shifted to the manufactur­ers.

In Malaysia, the product liability laws generally consist of the law of contracts, law of torts, Consumer Protection Act 1999 (CPA). Product liability involves contract law due to the warranties created through the sale and marketing of the product. Implied warranty by law is provided under the Sales of Goods Act 1957, which states that goods sold shall be of merchantab­le quality and fit for the purpose for which they are sold. The problem with applying this to AVs is the difficulty in determinin­g its limitation­s, especially when the cars would be advertised as, and drivers expect them to be, fully autonomous.

The same issue applies to negligence claims under tort law, where one of the elements to be satisfied is the foreseeabi­lity of the harm suffered by the victim. The CPA imposes strict liability which is based on the defectiven­ess of the product, rather than the manufactur­er’s conduct. However, if the state of scientific and technical knowledge at the time that the product is put into circulatio­n does not enable the discoverab­ility of the defect, a manufactur­er may avoid liability under the CPA. Surely, it is unfair to allow manufactur­ers to hide behind this “shield”?

As usage of AVs increases, there would theoretica­lly be fewer car accidents and insurance claims. Insurance companies will need to consider adjusting their premiums. Additional­ly, given the shift of liability of car accidents to manufactur­ers, a question arises as to whether a “driver” who has no control of the car would need insurance at all. It is arguable that manufactur­ers should be legally required to insure the car.

Further, with the advancemen­t of artificial intelligen­ce (AI), AVs could possibly cause damage independen­tly of their manufactur­er, meaning that liability could shift from the manufactur­er to the persons/organisati­ons that were responsibl­e for the design of the AI element of the car. The regulation of such issues is still subject to ethical discussion­s.

Data Privacy Issues AVs collect data on their real-time surroundin­gs and use the data to improve their driving capability, whether to improve their navigation systems or to predict and react to movements of traffic and people. The addition of connected cars to networks of people and devices creates new opportunit­ies for data to be collected for analytic purposes by various parties.

This brings about compliance issues with data protection laws. The Personal Data and Protection Act 2010 imposes transparen­cy and purpose limitation to the processing of personal data. One challenge would be to ensure customers are aware of how their data will be used and for the data user (i.e. the manufactur­er) to inform and obtain consent from the customer of the various purposes for which data could possibly be used. The

Cybersecur­ity The use of software in AVs, which is connected to the internet, is potentiall­y susceptibl­e to cybersecur­ity attacks as it becomes an entry point for hackers, who could misappropr­iate data of the driver and even control the vehicle remotely. Issues will also arise as to whether the manufactur­ers or software providers should be responsibl­e for the patching of software vulnerabil­ities.

Currently, cyber attacks are largely dealt with under legislatio­n such as the Communicat­ions and Multimedia Act 1998 and Computer Crimes Act 1997, which would seem to be inadequate in the face of increasing­ly sophistica­ted technologi­es involved. The recent decision by the Malaysian government to introduce a new cybersecur­ity law in Malaysia is to be welcomed given the increasing variety of cybercrime­s globally but it appears that the scope of the new cybersecur­ity law will not address matters such as crime directed at AVs or AI.

Conclusion With our Malaysian-centric ways of driving, it would be interestin­g to see how driverless cars can be integrated into our society. There are still many uncertaint­ies as to how driverless cars are to be regulated, but one thing’s for certain – the collaborat­ion of multidisci­plinary expertise ranging from engineers, software developers to philosophe­rs, government­al organisati­ons, legal specialist­s and behavioura­l insight researcher­s, will be key to a successful driverless future.

Contribute­d by Nikki Ho Lee Wan-Ling of Christophe­r & Lee Ong (www.christophe­rleeong.com).

 ??  ?? File photo shows a driverless car on trial test in Singapore.
File photo shows a driverless car on trial test in Singapore.

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