Turkish Law Blog

Autonomous Driving, Ethics and the Legal Issues 1

Deniz Saltık Deniz Saltık/ Rheinische Friedrich-Wilhelms-Universität Bonn
14 January, 2020

I. Introduction

Automated and autonomous driving will play an important role in future mobility. Today's vehicles can relieve the driver in many situations and technical progress is developing rapidly. Nevertheless, questions are still unanswered on the way to autonomous driving - including questions about the legal framework.

Automated or autonomous driving distinguishes two development stages in self-driving cars. Today's assistance and semi-automated systems support the driver, but they do not replace him.

Autonomous systems go a step further in future cars: the driver becomes a pure passenger. The difference between automated and autonomous driving is also legally important.

1. The Five Levels of Automated Driving

“Autonomous driving” means the fifth and highest level of so-called automated driving. This level 5 is characterized in that the vehicles have no driver, but only passengers. Apart from setting the target and starting the system, human intervention is no longer required.

This is the difference to level 4 below, "fully automated driving". The system is also permanently managed by the system here, but the driver can be asked to take the lead if the driving tasks can no longer be mastered by the system. However, the system is able to return the vehicle to a minimal-risk system state from any initial situation if the driver does not take the lead.

This is not guaranteed with level 3, "highly automated driving". Here too, however, the system independently takes on a lot of driving performance such as braking, steering, changing lanes or overtaking. The driver can do other things, but the system prompts the driver to take the lead if necessary.

In stage 2, "partially automated driving", many functions such as parking, lane-keeping, general longitudinal guidance, acceleration, and braking are performed by the system (e.g. by the traffic jam assistant), but the driver must keep an eye on this at all times.

Finally, level 1, “assisted driving”, is characterized in that only certain assistance systems (e.g. adaptive cruise control) help to operate the vehicle.

Level 0 refers to non-automated driving, in which the driver carries out all driving functions himself, even if support systems (e.g. ABS) are available.

2. Autonomous Cars: Who Run over?

Autonomous cars can come in dilemma situations when an accident threatens.

Autonomous vehicles can also face a decision dilemma. How should they steer before an accident if there is definitely damage? US researchers have found answers in a global survey. According to this, a majority would be more likely to spare children than older people and avoid people rather than animals. However, the result shows greater cultural differences.

The internet survey entitled "Moral Machine" made headlines worldwide. The large participation enabled the researchers to analyse almost 40 million decisions in dilemma situations. However, the survey was not representative; for example, young men were disproportionately represented.

In a specific case study, the vehicle's brakes failed. Respondents had to decide whether to run over three elderly people crossing the street in red or whether to steer the car against a concrete wall. This would result in the death of the inmates, including a boy. Overall, the participants had to make nine decisions in different situations, including: vehicle occupants or pedestrians, men or women, younger or older people, athletic or unsportsmanlike people, people with higher or lower social status.

The evaluation by country revealed three large groups: western, eastern and southern clusters. The decisions in many Asian countries (eastern cluster) differ from the other groups in that they would not spare the younger people. Instead, respect for the older members of the community applies in these countries. The southern cluster (Central and South America) differs from the western cluster (Europe, North America), among other things, in that the Central and South Americans would intervene much more often than without steering.

The data comes from the freely accessible online platform Moral Machine, on which users can run through various scenarios in car accidents - including the example with the man and the child.

According to the results of the study, a large part of the respondents worldwide has different moral ideas.

According to the researchers, the data show several trends:

  • Most of the test subjects prefer to save as many lives as possible. Age, gender or social position play a subordinate role in these cases.
  • On average, more women are saved than men and more children than old people. Fitness, on the other hand, has little effect on the decision. The social position against it. The death of homeless people and thieves is more common than that of doctors.
  • When it comes to choosing between the survival of humans and animals, the vast majority choose humans.
  • People who walked across the street when the traffic lights are red are less likely to be rescued than those who behave correctly.
  • Passengers in the car are no more protected than pedestrians. According to the researchers, this is an indication that the test subjects actually see themselves as uninvolved observers and do not identify with the driver or the passenger.

3. The Situation in Germany

3.1. Ethics Committee and Legal Regulations

The German legislator has become active in automated driving: On June 21, 2017, new rules for automated driving came into force. Germany is the first country to regulate automated driving in a uniform framework. The law creates the conditions for highly and fully automated systems. In contrast to semi-automated systems that only support the driver, such systems take over the vehicle control completely. However, the driver must remain ready to take over. However, the new law does not regulate autonomous driving, in which there are only passengers. There is still a need for action at the international level.

New technologies also mean new legal questions, which is also the case with automated and autonomous driving. In Germany, politicians have reacted to this: in 2016, the federal government set up an ethics committee that dealt with legal and ethical issues relating to autonomous driving.

In June 2017, the ethics committee adopted a final report with a total of 20 ethical rules. Among other things, it was stated here that the protection of people always has priority. The ethics committee also rightly made high demands on data protection.

There are several agreements at the international level that provide the legal framework for national road traffic laws. One of the most important is the Vienna Convention on Road Traffic of 1968. Automated systems were not yet known in 1968 and were therefore not regulated accordingly. At that time, the provisions were based on vehicle control by the human driver. After the last change in March 2016, automated systems are allowed. Autonomous driving is not yet possible, however, because the convention still provides for a driver.

In addition, the regulations for the approval of automated vehicles at the international level must be adjusted.

3.2. The Key Messages of the Ethics Committee

Automated and connected driving is ethically justifiable if the systems cause fewer accidents than human drivers. In other words, automated systems must have a positive risk balance.

Property damage always comes before personal injury: In dangerous situations, protecting human life always has top priority. For the programming of the systems, this means that in a so-called dilemma situation, animal or property damage must be accepted if the personal injury can be avoided.

When designing and programming the vehicles, a significant increase in traffic safety is required. The control systems must, therefore, be programmed for a defensive and forward-looking driving style.

In the event of unavoidable accident situations, any qualification of people based on personal characteristics (age, gender, physical or mental constitution) is prohibited. Offsetting human lives are prohibited.

In every driving situation, it must be clearly regulated and recognizable who is responsible for the driving task at what time: the person or the computer. Whoever drives must be documented and saved (e.g. to clarify possible liability issues in the event of an accident).

Systems that are self-learning in-vehicle operation may only be used if they do not undermine the 20 rules of the ethics committee.

In principle, the driver must be able to decide on the transfer and use of his vehicle data (data sovereignty and informational self-determination).

II. Conclusion

Nevertheless, the ethical committee does not offer a real solution to the real dilemma situations.

According to the ethics committee: "Real dilemma decisions" like the one about "life against life" are dependent on the concrete actual situation including unpredictable "behaviours of those affected. They are therefore not clearly normable and also not ethically programmable."

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