Report on the IMKR Lecture “Autonomous Driving as a Legal Challenge” by Prof. Stender-Vorwachs

On January 8, 2020, the third IMKR lecture of the winter semester 2019/20 took place. The guest speaker was Prof. Dr. Jutta Stender-Vorwachs, LL.M. (Virginia), from the Faculty of Law at Leibniz University Hannover and Deputy Director of the Interdisciplinary Institute for Automated Systems (RifaS). She spoke about selected issues related to the topic “Autonomous Driving as a Legal Challenge.” To begin, Prof. Stender-Vorwachs highlighted the growing importance of automation in the automotive industry. Building on this, she explained the liability of vehicle owners and drivers, as well as §§ 1a, 1b, and 1c of the Road Traffic Act (StVG) and §§ 63a, 63b StVG, which have governed highly and fully automated driving functions (Levels 3 and 4) since June 21, 2017. In doing so, five graded classifications of vehicle automation (“Levels”) were established.

Level 1 driver-assistance features, such as cruise control and distance detection systems, are already widely installed but merely support manual driving. At present, Level 2 technical features are found in only a few vehicles. These enable partially automated driving, such as staying in lanes on the highway. At the highly automated Level 3, the vehicle drives largely autonomously – particularly on highways – overtaking other vehicles and swerving to avoid obstacles, and requires manual control only after a prior system prompt. While at this level the driver must still monitor the situation at all times, at the fully automated Level 4, the vehicle already drives on its own on rural roads and in the city and does not require the driver’s constant attention. Level 5, in turn, is based on fully autonomous driving without a steering wheel or any other means for the driver to intervene.

Prof. Stender-Vorwachs then explained the owner’s liability under § 7(1) StVG, according to which the vehicle owner bears the operational risk. According to prevailing legal opinion, automated driving functions do not constitute “force majeure” within the meaning of § 7(2) StVG, so the issue of liability is likely to remain unchanged. Driver liability is also likely to remain the same in Level 3 and 4 vehicles, as the driver continues to take control during automated driving. Consequently, pursuant to §§ 18(1) and 1a(4) StVG, the driver is considered the vehicle operator in Levels 3 and 4 if he or she “activates and uses the driving system to control the vehicle.” To this end, the driving system must, pursuant to § 1a(2) sentence 1 No. 3 StVG, be capable of being manually overridden and deactivated at any time.

As regards driver fault, the proportion of accidents caused by human error – which currently stands at around 90% – is likely to decrease significantly as automation increases. Nevertheless, Prof. Stender-Vorwachs considers it necessary to maintain driver liability. Drivers would still have obligations when using automated driving systems, such as using the vehicle in accordance with its intended purpose (§ 1a(1) StVG) and immediately taking control of the vehicle upon request by the system or upon recognizing – or being required to recognize – obvious system errors (§ 1b(2) StVG). At the same time, Prof. Stender-Vorwachs points to a conceivable shift in responsibility for traffic accidents as automation increases – away from the human driver and toward the driving system, or rather the manufacturer, who could be considered a “quasi” owner. Applied to Level 5, this would mean that the manufacturer would likely have to be regarded as the driver.

The presentation then addressed the scope of product and manufacturer liability, which at times encompasses the design of the control software and compliance with technical standards. It also provided a criminal law analysis, though this requires further clarification. In any case, it would be difficult to hold the driver liable in the case of autonomous vehicles. Conversely, the constant threat of criminal liability for researchers, programmers, manufacturers, and sellers is equally undesirable.

Above all, data protection issues arise. For example, in the event of an accident, the vehicle owner must, pursuant to § 63b(3) Nos. 1 and 2 StVG, make data from the vehicle’s black box available to the driver and/or a third party for the purpose of asserting or defending against claims. Given the vast amount of data required for autonomous driving, this raises the question of the right to informational self-determination under Article 2(1) in conjunction with Article 1(1) of the German Basic Law (GG). With regard to the GDPR, according to Prof. Stender-Vorwachs, the only option is to weigh the interests involved on a case-by-case basis. However, data necessary for the operation of the vehicle suggests a legitimate interest. In conclusion, Prof. Stender-Vorwachs discussed with the participants, among other things, ethical and constitutional issues, particularly the compatibility of individuals’ right to self-determination with reliance on a machine and the “dilemma” arising from unavoidable collisions with people.

Further reading (in German): Oppermann/Stender-Vorwachs, Autonomes Fahren, 2nd ed., Munich 2020