The Law Commission of England and Wales and the Scottish Law Commission released a final 315-page report on January 26 recommending the U.K. and Scottish Parliaments introduce new legislation to regulate self-driving cars.
The report recommends a new Automated Vehicles Act drawing a clear distinction between features which just assist drivers, such as adaptive cruise control, and those that are self-driving.
This distinction is key because it has profound legal consequences. For example, a driver using a driving assistance feature would still be responsible for any accident or driving offense, but the report suggests that a human driver can no longer be the principal focus of accountability when a self-driving feature is activated.
“When a car is authorized by a regulatory agency as having self-driving features and those features are in-use, the person in the driving seat would no longer be a driver but a user-in-charge” said the report. Under this proposal this user cannot be prosecuted for offenses which arise from driving. This immunity would include dangerous driving, speed limits or running a red light.
“If users are told that they do not need to pay attention to the dynamic driving task, they cannot be prosecuted for failures,” the report said.
Instead, the company or body that obtained the authorization (an Authorized Self-Driving Entity, ASDE) would face regulatory sanctions if anything goes wrong. If the vehicle drives in a way that is considered unsafe, the ASDE would be responsible. Automakers and software developers need to prove their features are “safe even if an individual is not monitoring the driving environment, the vehicle or the way that it drives.”
The responsibility of automakers is also extended to those cases where the only occupants on the vehicle are passengers, with no driver.
The report recommends that all authorized vehicles (AVs) go through the same regulatory process before they are put on the roads and the ASDE — that is, the automaker or software developer — is responsible for the safety of the vehicle.
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The procedure includes technical approval of the vehicle and authorization for the self-driving features. Interestingly, the ASDE should nominate a person in its organization to sign the safety report, and that person may face criminal sanctions if they fail to provide correct and complete information.
Another recommendation that goes beyond safety, and even driving, is to discourage misleading marketing practices by making them a criminal offence. According to the report, many drivers are still confused about the differences between self-driving and driver assistant features, and these differences may be more blurred as technology advances. This may not only be dangerous, but it may also shift the responsibility in case of an accident or driving offence. Therefore, a company that uses the terms “self-driving” “driverless” and “automated vehicle” when the car is not authorized as such — or is likely to confuse drivers into thinking they don’t need to monitor the car while they are using it — can face criminal charges.
One of the last recommendations that may raise some concerns in terms of privacy is the proposal to include a statutory duty on data sharing that would compel the ASDE to collect data and make it available to insurers for claim purposes and to regulators. The burden on the companies may be even greater, as the proposal suggests that not only do they need to present a detailed plan on how data will be stored and protected in order to get an authorization, but they also need to show how the system complies with data protection law.
This report, which took three years to be conducted, will be sent to the U.K. government to decide the next steps. Although the report may not be adopted entirely, it is expected to lay the foundations for any legislative initiative. In Europe, policymakers are also working on a separate EU framework, still at very early stages, and the initial findings may be presented in the second half of the year.
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