Blog post: The liability of robotic and autonomous systems

News | Posted on Monday 21 September 2020

The main point of law is the following: Who is liable when an autonomous system causes injury or death to a person or damage to property?

For the purpose of this post, the term autonomous systems covers robotics and Artificial Intelligence (AI) software or algorithms; any system that could function without human intervention or control. The focus from a legal point of view is on the term “autonomous”.

PART ONE - Liability of autonomous systems under the UAE Civil Code

This is the first in a series of blog posts discussing the liability of autonomous systems under United Arab Emirates (UAE) law.

As a general overview, there is no specific law that governs autonomous systems in UAE, meaning there is no law enacted on a federal or local level that specifically deals with AI regulation or policy.

However, there are several laws and regulations that cover the liability of autonomous systems, such as:

  • the UAE penal code
  • consumer protection laws and regulations on a Federal and Emirate level
  • data privacy regulations
  • the UAE Civil Transactions Law
  • inherent Sharia law principles.

The subject is complex and requires a deep dive into each of the existing regimes. For this first post in the series, I will focus exclusively on the liability of autonomous systems under the UAE Civil Transactions Law no. 5 of 1985 (“Civil Code”).

A - Liability under the Civil Code

The main point of law is the following: Who is liable when an autonomous system causes injury or death to a person or damage to property?

Under common law, this is the regime of “tort”. Under the UAE Civil Code (and although some translations refer to “tort”) the equivalent term is “acts causing harm”.

Article 282 of the Civil Code states that “any harm done to another shall render the actor, even though not a person of discretion, liable to make good the harm.”

The “harm” is divided into two things:

  1. harm done to a person
  2. damage to property

The liability requires proof of damage and causality link, meaning that the damage suffered was actually caused by the act of harm. If these conditions are met, then the person causing the harm is liable and the one who has been injured is entitled to compensation.

Let us start with a basic example, a car hits a bystander and injures him. The injured person is entitled to compensation and the driver is liable as he was not paying attention to the road.

Now, consider the same example but this time the brakes did not work due to a malfunction: the manufacturer is liable.

Article 316 states that “Any person who has things under his control which require special care in order to prevent their causing damage, or mechanical equipment, shall be liable for any harm done by such things or equipment, save to the extent that damage could not have been averted. The above is without prejudice to any special provisions laid down in this regard.”

In both of the examples above, we were able to determine the “person”, whether natural or corporate, behind the harmful act.

Such person, is entitled to compensation. Article 292 states that “compensation shall be assessed on the basis the amount of harm suffered by the victim, together with loss of profit, provided that that is a natural result of the harmful act”. I will discuss in more details in my second post the remedies and compensation available to a person who suffered harm.

Therefore, the Civil Code liability regime clearly discussed the liability of “things” but the reasonable assumption is that “things” by themselves are not liable but the persons (whether corporate or individuals) behind them are.

What about autonomous systems?

B - The case of autonomous systems

What happens if an autonomous car injures a person? Who is then liable? The manufacturer of the car? The designer of the autonomous system? The designer of the cameras installed in the car? Was it fully autonomous or semi-autonomous (i.e. was there a driver behind the wheel who had “control of the car”)? Was the accident due to a simple mechanical malfunction or a more complex autonomous decision-making error over which a human had no control?

Article 291 of the Civil Code states that “If a number of persons are responsible for a harmful act, each of them shall be liable in proportion to his share in it, and the judge may make an order against them in equal shares or by way of joint or several liability.”

So liability can be shared if proven. But what if we cannot determine who is liable? And does this mean there is a gap in the regulations?

The existing provisions of the Civil Code cover the liability of harmful acts and are able to protect injured persons through compensation. These provisions such as article 316 for “liability of things” can be mirrored to cover autonomous systems’ liability in general.

However, in the case of a fully automated system with no control from a human, there is a potential gap in the regulations. This gap does not necessarily need to be covered by changing the existing regime or amending the articles of the UAE Civil Code. Drafting a “cover all cases” article may be difficult. I also believe it is early as we need more testing on autonomous vehicles to determine the root causes of any malfunction or accident.

This requires an enormous amount of data and we don’t have enough cases yet, in order to set legal precedents and draft laws or regulations.

One way to look at the potential gap is to see what other jurisdictions have done and try to tailor a solution that would fit the UAE regime. I will discuss this in my third post.

With many companies and governments investing in AI and autonomous systems, legislation should definitely accompany this fast-paced race.

 

PART TWO - Available remedies for injury or damage caused by autonomous systems

In my first post, I discussed the liability of autonomous systems under the United Arab Emirates (UAE) law.

I mentioned that several laws govern the liability in the UAE and discussed in detail the Civil Code provisions. In particular, the regime of "tort" or "acts causing harm" and who can be liable when an autonomous system causes damage or injury.

It is worth mentioning that I am discussing the UAE law provisions in particular as the UAE National Artificial Intelligence Strategy 2031 spans several sectors, including healthcare and transport, and is intended to enable the "UAE to become the world's most prepared country for artificial intelligence."

If we soon see self-driving cars on the streets of the UAE questions will arise on liability and policy issues: I hope that these posts will shed some light on what to expect, the gaps, and recommendations for the future.

In this second post, I discuss the remedies available to a person who has suffered harm by an autonomous system.

The main remedies are civil and criminal. In a civil claim or a product liability claim, the injured person can seek damages. In a criminal claim, the person can seek imprisonment, a fine, or diyah (blood money) in the case of a death.

A - Civil Code

Article 282 of Federal Law No 5 of 1985 – Civil Code (the “Civil Code”) states: “the author of any tort, even if not discerning, shall be bound to repair the prejudice”.

The burden of proof lies on the person seeking compensation; where he or she must show the Court, by presenting supporting documents, the actual damages sustained, whether an injury or damage to property for example.

The injured person must establish that there is an actual damage and also establish a link between the action of the system and the damage sustained.

In the case of an autonomous medical diagnostic system, for example, it may be difficult to prove a link between an error in the design of the system and the damage caused, opposed to proving a link between a human error made by the medical practitioner in a classic example of a medical malpractice case.

In the case of a supervised (not fully autonomous) machine learning system, the matter may be even more complicated.

Article 292 of the Civil Code states that “In all cases the indemnity shall be assessed according to the amount of harm suffered by the victim, together with loss of profit, provided that is a natural result of the harmful act.”

The damages or compensation is assessed based on the injury, severity and other factors. Unlike western regimes, the amount of compensation granted by courts is not usually high.

The courts can award compensation not only for physical damage but potentially moral damage, loss of earnings, loss of opportunity, and potential future damages. 

The courts in the UAE are not obliged to provide the basis of their calculation for compensation.

B - Criminal claim

If an injury or death is caused by an autonomous system then, in addition to the right of the injured party to claim compensation in a civil claim, there is a right in a criminal one.

It is most likely that the harm caused by an autonomous system would be qualified as a misdemeanour under Article 29 of Federal Law Number 3 of 1987 the ("Penal Code"), where the remedies are:

  1. Detention
  2. A fine in excess of one thousand Dirhams
  3. Diyah (a Sharia law-derived principle equivalent to compensation and granted by the courts to the family of the deceased by the person causing the harm)

The judge can order the above three sanctions concurrently.

However, article 299 of the Civil Code mentions that “Compensation shall be payable for any harm caused to a person. Provided that in cases in which the diyah (blood money) or arsh (shari’a damages for personal injury not resulting in death) are payable, they shall not be payable in addition to such compensation unless the parties agree to the contrary.”

C - Product liability - Consumer Protection Law

Federal Law No. 24 of 2006 on Consumer Protection and its Executive Regulation (“Consumer Protection Law”), is the legislation relating to product liability. 

The Consumer Protection Law mentions that "providers" are liable for defective products meaning that anyone who is involved in the circulation of the product may be liable, this includes manufacturers and suppliers.

There is no need to prove that the provider was negligent as a duty of care is presumed so the provider would be held liable if the damage occurs due to defect or errors in the design of the autonomous system. This is a strict liability-based regime like western regimes.

The Consumer Protection Law is relatively new. So far consumer protection regime has been used in the UAE in complaints against a provider for repair, replace or refund of a defective product.

Injured persons still use the general provisions of the Civil Code for claiming compensation for damage suffered, but in the case of autonomous systems, we may see a rise in product liability claims, using the Consumer Protection Law provisions in addition to the Civil Code, to seek compensation.

In conclusion, the remedies are mainly compensation granted by the courts. The injured person, or the person sustaining the damage to his or her property, will have recourse against the provider of the autonomous system and potentially others, depending on the facts of each case and while taking into consideration that the burden of the proof relies on the claimant.

I will compare the UAE regime to other regimes in my next post.

 

Tarek Nakkach
Regional Legal Counsel - UKIMESA

Hewlett Packard Enterprise
and AAIP Programme Fellow 

 

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