The Situation: Autonomous cars with incorporated artificial intelligence ("AI") are now a reality whereas French regulations have yet to adjust.
The Issue: The phenomenon of new autonomous cars using AI gives rise to questions about how product liability principles will apply and adapt thereto.
Looking Ahead: Carmakers should already be considering what liability risks could be created by incorporating AI in autonomous cars and how to mitigate such risks.
During the 2018 Paris Motor Show, consumers and professionals had the chance to see the most recent models of autonomous and connected vehicles. Automobiles are increasingly using AI and, in particular, Machine Learning to make decisions. As vehicles using Advanced Driver Assistance Systems ("ADAS") are already on the market in France, carmakers, engineers and programmers are working on the development of more and more autonomous vehicles. However, the answer to the question as to how liability rules would apply in case of damages or injuries suffered in accidents (or car crashes) involving cars controlled, in whole or in part, by AI remains unclear.
Different regulations must be taken into account when it comes to damages or injuries suffered in accidents (or car crashes) involving cars controlled, in whole or in part, by AI.
In France, car producers are subject to product safety regulations provided by articles L. 421 1 et seq. of the French Consumer Code, implementing the EU Directive 2001/95/EC of December 3, 2001 on general product safety ("GPSD").
Under this regulation, only safe products must be placed on the market. A "safe product" is defined as any product which, under normal or reasonably foreseeable conditions of use, does not present any risk or only the minimum risks compatible with the product's use. In this respect, the producer who knows or ought to know that the product presents risks to consumers that are incompatible with the general safety requirement must (i) immediately inform competent authorities - which may then notify all other Member States and the EU Commissions through the Community Rapid Information System RAPEX - and (ii) take appropriate actions, including, if necessary, withdrawal from the market, warning consumers or issuing a recall.
Although no specific provision on AI is contained in the French Consumer Code nor in the GPSD, producers of autonomous and connected vehicles should be prepared to demonstrate - as the case may be -...