Mapping the Global Legal Landscape for Self-Driving Cars

14 September 2021

In 2015, Elon Musk said self-driving cars that could “drive anywhere” would be here within two to three years. In 2016, Lyft CEO John Zimmer said autonomous vehicles would “all but end” regular car ownership by 2025. Now, researchers in the automotive sector have estimated that we’ll see approximately 8 million autonomous or semi-autonomous vehicles on the road in 2025.

However, despite being dubbed a vital part of the mobility of the future, the autonomous driving industry has experienced more than its fair share of obstacles. Although advancements in this field have gone from nought-to-60 much faster than expected, precious little has changed to our daily driving.

Even several years ago, it seemed we were on the cusp of a breakthrough – but the prospect of kicking back and enjoying robot-powered ride remains in transit, even though activity between carmakers and start-ups like Waymo, Cruise and Zoox is taking place.

So, what’s the hold up?

As it turns out, matching the competence of human drivers has proved difficult.

Years of tests have returned with technological challenges; high profile court battles from related injuries and deaths have cast a dark cloud over the industry and billions of dollars have been poured into developing a driverless car that can overcome the issues we human drivers contend with like bad weather, heavy traffic and vandalised road signs – not to mention larger challenges like hacking, poor road infrastructure and the traffic laws needed to regulate the use of these vehicles.

Meanwhile, across the world, lawmakers have been divided for years over how to reform regulations governing self-driving cars and what consumer and legal protections should be included. If we are to take advantage of this fast-evolving technology, a clear legal structure is needed to guide us forward.

Below, we explore the global legal landscape with regard to driverless cars and delve into the details that differ between global jurisdictions.

 

Defining driverless cars

Over the years, autonomous vehicle levels for driving has evolved in line with technological advancements to include adaptive cruise control, environmental detection and other advanced driver assistance systems.

Today, experts talk about six levels of autonomous vehicle technology, ranging from level 0 (a traditional vehicle with no automation) to level 5 (a vehicle that can independently do anything a human driver can). The specific levels are as follows:

  • Level 0 (No Driving Automation) …
  • Level 1 (Driver Assistance) …
  • Level 2 (Partial Driving Automation) …
  • Level 3 (Conditional Driving Automation)
  • Level 4 (High Driving Automation)
  • Level 5 (Full Driving Automation)

 

Autonomous driving laws in the UK

Britain’s transport ministry forecasts that by 2035, around 40% of new UK cars could have self-driving capabilities, creating up to 38,000 new skilled jobs. These figures are based on the proposals put forward by the Department for Transport, which state that the “first types of self-driving vehicles” would be seen on British roads late 2021. However, industry bodies have warned that this is far from the truth, largely because what the UK government defines as a self-driving car is slightly misleading.

At present, their definition of self-driving cars are vehicles equipped with an automated lane-keeping system (ALKS). Such systems were first used in Japan, helping cars to stay in the correct line while stuck in slow-moving traffic on motorways while allowing the driver to take their hands off the wheel temporarily. These systems cannot, however, navigate a car from one UK city to another.

The current laws, which seek make the Department for Transport’s prediction a reality, will – as well as limiting the number of cars on the road – cap them at 37 miles per hour. They also state that the driver will need to stay alert and be able take over when requested by the system within 10 seconds.

Critically, drivers will remain responsible if they fail to take back control of the vehicle in a timely manner, or if they misuse the ALKS. This type of system is “conditional automation” and depends on a driver who fully understands their legal duty to monitor the automated system. So, not a snooze-behind-the-wheel-while-the-robot-steers-me-home situation you may have had in mind.

Laws allowing such autonomous features already exist in several US states, but in practice, many drivers have attempted to push the capabilities of driving assistance systems. This has resulted in accidents and deaths. Perhaps one of the real underlying problems is that we expect too much having waited so long for true driverless cars; we as drivers need to fully appreciate the limits of the ALKS and be trained on the ins and outs of these systems before they take over the automotive market.

But the UK government has said it is not considering mandatory training for operating the ALKS, nor will the operation of self-driving vehicles require a special licence.

The Highway Code is now consulting on what rules will be put into new laws to make sure the technology is safely used. But without mandatory training, can we safely assume that an individual will take the time to understand the legal complexities of such systems, and the liabilities they are taking on?

As eager as we all are to see the rollout of autonomous vehicles, keeping the public safe from potential accidents should be the priority. A cautious approach to regulating the market is needed rather than a blanket rule that supports innovation but puts the public at risk.

 

Legal frameworks for self-driving cars in the EU

Back in 2018, the European Union published a strategy paper titled On the road to automated mobility: An EU strategy for mobility of the future as part of the Commission’s third mobility package. The Commission’s strategy aims to make Europe “a world leader for fully automated and connected mobility systems”, while delivering a legal framework that members of the bloc can use to develop and deploy the relevant technology and infrastructure.

The paper predicts exponential economic benefits such as revenues exceeding €620 billion by 2025 for the EU automotive industry and €180 billion for the EU’s electronic sector.

However, as the accidents in the US have shown, such economic benefits of this technology cannot be reaped until the risks such as overreliance on automation are addressed and the highest standards of safety and security have been put in place.

Clearly, the current legal framework that governs the use of motor vehicles in the EU (the Motor Insurance Directive (2009/103/EC) and the Product Liability Directive (85/374/EEC) was not developed with self-driving cars in mind. With the advent of autonomous vehicles, policymakers must content with a whole new set of risks such as those relating to the failure of operating software or networks, those related to hacking and cybercrime and the misuse or overreliance on autonomous systems by the driver.

According to the EU’s proposed strategy for regulating autonomous vehicles, the actual cause of events that lead to an incident will be the key factor in attributing liability. The paper suggests fitting vehicles with data recorders to determine whether the human or the autonomous system was in control during and before the time of an accident.

On the issue of cybersecurity, there is no specific approach for protecting vehicles against this the threat. However, for data protection, the EU rules on the protection of personal data as per the GDPR apply to data collected from autonomous vehicles.

On the compensation of victims, the Motor Insurance Directive already provides for compensation for victims of road traffic accidents where autonomous vehicles are involved. The insurer is then able to take legal action against the AV manufacturer under the Product Liability Directive if there is a technical defect of the autonomous driving system.

With the global pandemic drawing focus away from technological innovation, progress in this area has understandable stalled. Until new European legislation is implemented, software providers and automotive companies will need to analyse their liability on a country-by-country basis to determine their level of exposure to risk. At present, it remains to be seen whether the Commission will propose an updated Directive to ensure common ground across member states.

In the meantime, we can anticipate that the legal position for liability in relation to vehicles that feature higher levels of automation won’t stray too far from vehicles that assist the driver. In case of accidents, the liability of each party involved (e.g., the driver, the manufacturer) will depend on the exact circumstances of the situation.

 

America’s approach to autonomous vehicles

The rush to roll out autonomous vehicles in the U.S. is understandable: after all, the industry has been tipped to generate trillions of dollars. In 2018, Google-owned autonomous driving company Waymo announced that 2020 would be the year that self-driving cars would become widely available. Three years and one global pandemic later, fully autonomous vehicles are still out of reach. The current offering is limited to cars that will automatically brake if they anticipate a collision and cars that will keep you in the right lane.

As is the case around the world, the US is facing both security and regulatory hurdles in the road to making driverless cars the norm. Who will be liable in the event of a crash? Who will have access to the data collected by the vehicles? How will manufacturers ensure their vehicles are not at risk of being hacked?

While the National Highway Traffic Safety Administration (NHTSA) recently updated its decade-old regulations to set out new terms for the “driver’s seat” and the “steering wheel” on self-driving cars, these new rules do not govern how any autonomous driving system should function.

At present, the NHTSA regulates the testing and safety of motor vehicles through the Federal Motor Vehicle Safety Standards (‘FMVSS”). Meanwhile, the National Transportation Safety Board (NTSB) has the authority to investigate road traffic accidents and make recommendations for improving safety. Traffic laws and road safety is also governed at state level according to their respective traffic codes.

Manufacturers in the automotive industry must take the entire legal framework into account when designing their products – the problem is (as it is across the globe) that the current regulations were drafted without contemplating the challenges and risks of driverless cars; laws were put into place assuming the presence of a human driver behind the wheel and did not make concessions for such advanced automated systems.

In response, the federal government is beginning to develop an AV-specific legal framework so as not to stall technological progression and allow for more real-world testing scenarios. Eager to jumpstart the AV industry, Republican Senator John Thune and Democratic Senator Gary Peters published a draft amendment in June 2021 that would grant the NHTSA the power to exempt 15,000 self-driving cars per manufacturer from safety standards written with human drivers in mind. Thune argued that AVs could eliminate deaths due to human error like distracted or impaired drivers.

The amendment was rebuffed by the U.S. Senate Commerce Committee, who cited recent Tesla crashes and other serious incidents involving driver assistance systems in their response. The American Association for Justice, which lobbies for trial lawyers who typically represent plaintiffs, said it “will continue to oppose any legislation that exempts the driverless car industry from basic safety standards, and allows auto and tech companies to avoid being held accountable through the use of forced arbitration clauses.”

On the other hand, the Self-Driving Coalition which represents Waymo, Volvo Cars and Ford Motor Co along with others said that “the exclusion of AV legislation from current surface transportation reauthorization bills reflects yet another missed opportunity to save lives”, but it vowed to continue working with lawmakers to find a way forward.

At the moment, there is some existing regulation governing self-driving vehicles at state level, and the number of states considering legislation related to AVs is gradually increasing.

However, until Congressional leaders enact legislation to govern the entire US market, the U.S. regulatory framework on driverless cars will continue to be a complicated patchwork that differs between states and is subject to change. So, until clear rules are established at federal level, developers and investors are free to back their preferred AV technologies, and to seek permission to test these technologies on U.S. roads.

 

The laws governing self-driving cars in China

As the world’s largest automotive market, it figures that China seeks to take the lead in the global race towards autonomous driving technology and transform public transport, delivery vehicles and freight trucks along with private vehicle ownership.

Currently, China’s target is for vehicles with at least partial self-driving functions to account for 50% of new auto sales in five years, and analysts say the Chinese authorities’ willingness to allow for aggressive experimentation of new technology will create fierce competition with the U.S. AV market.

Since 2018, China has allowed autonomous driving road tests (not on highways), handling a total distance of more than 2 million kilometres – and budding AV companies haven’t hesitated to take advantage of this.

Already, Chinese software start-up AutoX, backed by Alibaba, MediaTek and Shanghai Motors, has created and launched its fully driverless robotaxi service in China, and are now testing driverless fleets on public roads. Besides AutoX, search engine operator Baidu, Pony.ai – backed by Sequoia Capital and Toyota, and WeRide, backed by the Renault-Nissan-Mistubishi alliance, have each began their pilot robotaxi programs in China’s major cities.

This January marked another milestone for Chinese AV market as the Ministry of Industry and Information Technology published a proposal that encourages local governments to open more roads for testing driverless cars. Unlike in Western countries where technological innovation waits on the proverbial amber light of legal policy development to turn green, there is a lot more discretion in China.

The Shenzhen Draft Regulations that were published in January 2021 allow for more autonomous cars to carry out road testing and demonstration application on highways and urban expressways within the Shenzhen Special Administrative Region. Furthermore, the draft regulations state that all highly automated vehicles (HAVs) and fully automated vehicles can be operated without a driver, providing that the car has passed a safety assessment and received approval by the relevant safety authorities in the Shenzhen region.

Clearly, China’s drive to cross the chequered flag of the autonomous vehicle market ahead of foreign players is triggering technological innovation and rapid progress on legislation for self-driving cars. Plus, many of the Chinese AV companies are testing relentlessly in the U.S., which remains a world-leader in testing grounds for self-driving cars.  But what do the draft regulations have to say on liability in case of accidents?

According to the proposals, there is a clear distinction between the liability for autonomous cars with drivers and those without. If an autonomous car has a driver using the autonomous system for assistance, liability will be dealt with under existing road traffic laws, meaning the driver will remain responsible for accidents or violations of the law. However, if the accident is the fault of a defect of the autonomous car, the driver can recover compensation from the manufacturer or distributor of the vehicle.

If an autonomous car has no driver, the Shenzhen Draft Regulations place liability on the controller or owner of the vehicle for violations or accidents. Similarly, owners can claim compensation from the manufacturer/distributor if the accident/violation was caused by a defect in the vehicle.

While the Shenzhen Draft Regulations do make a bold attempt to determine responsibility based on the principle of “one who benefits must bear liability”, there are still many issues that the draft regulations left unresolved, and it’s clear that there is plenty of room for inconsistencies between existing traffic laws and new regulations. That’s understandable, as these proposals are still in draft form and likely to undergo various rounds of amendments. However, even in their current form, the draft regulations will undoubtedly drive China’s approach to legislation in the AV industry and ultimately govern the commercialisation of AVs in China.

The proposals go further by regulating the liability of companies related to autonomous vehicles in respect of cybersecurity. Firstly, AV related companies must pass a cybersecurity assessment to ensure internet data is not at risk of being leaked, stolen or tampered with and that accuracy and usability of data is protected. Secondly, companies will need to establish the relevant systems to ensure the personal data of owners/drivers is being strictly guarded by a robust data security and privacy protection system. Finally, the regulations prohibit the illegal collection, processing and storing of personal data and data related to national security.

 

Finding a way forward

Driverless vehicles remain on the horizon, promising innovation in a number of industries and transformation to infrastructure worldwide. At the same time, sophisticated levels of automation present significant challenges with regard to safety, security and data privacy for suppliers, manufacturers, sellers and consumers.

As our technological capabilities in the field of self-driving cars progress, it seems policymakers worldwide are hitting several walls when it comes to deciding the scope of legal oversight best warranted for the emergence of autonomous vehicles. In some jurisdictions, efforts have been made to tweak adjusting regulations and set out new strategies for the future. China, for instance, has made headway in the market by forging ahead with testing and technological development and devising appropriate legislation along the way.

This approach may be beneficial from the perspective of global economies and a nation’s reputation on the world stage; the carrot of multi-billion-pound revenues dangles in front of both automotive and technology industries alike, and the prospect of becoming a leader in the field is undoubtedly something that all nations desire. Evidently, though, this technology is not proving as “easy” to roll out as smart phones, for example. It’s a seismic investment that will require upheaval to infrastructure and a clear legal framework that can be followed to the letter.  That isn’t something that happens overnight.

Some are adamant that the “market should decide” how, when and where driverless cars should be deployed; they say that the legal ‘creases’ will be ironed once the technology is being actively used in society. Others call for strict legislative controls and clear guidance.

Inevitably, the pandemic has led to the suspension of several AV trials and halted progression in this field. And, following a series of devastating accidents caused by driverless cars, it’s true that the technology has become somewhat of a regulatory enigma: no one is totally sure what to make of it.

Nevertheless, it is still possible to imagine the positive impact that this technology could have if it were further developed and effective legal frameworks governing liability, safety and security were adopted. From less overcrowding on public transport to safer roads, efficient delivery networks and vehicles that are accessible for all, the potential of driverless cars is colossal.

Whatever direction the autonomous vehicle market takes, one thing is for sure: the concept of driverless cars is here to stay, and as technology and legislation involving autonomous vehicles grows more complex, so too will the legal cases that arise off the back of this innovative technology. As always, we will continue to stay on the pulse of the latest legal developments in this evolving global industry.

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