Clifford Chance

The screen goes dark. A deep, American-accented voice begins to boom: "humankind stands on the threshold of an era when ever more sophisticated robots, bots, androids and other manifestations of artificial intelligence (AI) seem to be poised to unleash a new industrial revolution, which is likely to leave no stratum of society untouched…"

You might be forgiven for thinking that it was the opening line to the latest Tom Cruise movie set in the 22nd Century but you may be surprised to learn that this prophetic paragraph was penned by the Legal Affairs Committee in the opening recitals of its Report to the European Parliament on Civil Law Rules on Robotics. On 16 February 2017, the Parliament overwhelmingly voted in favour of: adopting the Report including its recommendations to the Commission to regulate robots and AI, to introduce codes (no pun intended) of conduct for engineers and to re-examine the civil liability regime in this new paradigm.

Lawyers and science fiction don't ordinarily mix so the Report itself is ever more striking in its reference to that genre's contribution to societal fascination with AI through modern history, from Mary Shelley's Frankenstein through to Karel Capek's first imagining of a "robot".  The Report's literary and ex machina-inspired opening swiftly leads to the conclusion that bold legislative action is needed to address significant deficiencies in the existing legal frameworks that regulate (or rather do not) robots: "the current legal framework would not be sufficient to cover the damage caused by the new generation of robots, insofar as they can be equipped with adaptive and learning abilities entailing a certain degree of unpredictability in their behaviour, since those robots would autonomously learn from their own variable experience and interact with their environment in a unique and unforeseeable manner"

Report recommendations

The first task, the Report concludes, is to define the problem. Literally. 

The Committee suggests the adoption of a common set of EU-wide definitions for "cyber physical systems", "autonomous systems", "smart autonomous robots" and various subcategories thereof, taking into account characteristics such as the sensory data acquisition and exchange, self-learning from experience and interaction, adaption of behaviour and actions to environment and, to give the full sci-fi flavour, the absence of life in a biological sense (so no regulating cyborgs, at least).  Clearly this is important, however, since if there is a move to regulate robots, it is important to know what is or is not within the regulatory perimeter.

Then the really exciting recommendations flow... 

Firstly, the Report calls on the Commission to investigate whether advanced robots should be registered, presumably so that, like Johnny 5 in the 80's classic Short Circuit, a rogue robot can be identified and marched back to its creator for decommissioning. But registered with whom? Why, a fully-funded and resourced EU Agency for Robotics and Artificial Intelligence, of course! The Report recommends the creation of this new Agency to centrally oversee the Community's developments in robotics and AI, and to provide the technical, ethical and regulatory expertise needed to support a timely, ethical and well-informed response to the new opportunities and challenges, in particular those of a cross-border nature, arising from technological developments in robotics.

And in that vein, lest our robotic friends become too clever or powerful, the Report recommends that it should be enacted that humans must have control over intelligent machines at all times, which is of course easy until we don't have control... 

For those engineers developing in this space, a Code of Conduct for Robotic Engineers is proposed. The Code aims to address the need for compliance by researchers, practitioners, users and designers with ethical standards, but also introduce a procedure for devising ways to resolve the relevant ethical dilemmas and to allow robots and AI to function in an ethically responsible manner. The proposed Code sets out a number of principles, top of which is the principle that Human dignity and autonomy – both physical and psychological – is always to be respected.  The Code goes on to state that robotics developers should be accountable for the social, environmental and human health impacts that robotics may impose on present and future generations.  Ultimately, the Code concludes, the operation of a robotics system should always be based on a thorough risk assessment process, which should be informed by the precautionary and proportionality principles.

Liability for bad robots

The Report requests that the Commission submit a proposal for a legislative instrument on legal questions related to the development and use of robotics and artificial intelligence foreseeable in the next 10 to 15 years, combined with non-legislative instruments such as guidelines and codes of conduct such as that referred to above. 

That legislation, the Committee conclude, should address civil liability issues for bad robots but should in no way restrict the type or the extent of the damages which may be recovered, nor limit the forms of compensation which may be offered to the aggrieved party, on the sole grounds that damage is caused by a non-human agent.  The Committee even asks whether it may be appropriate to impose strict liability for damage caused by a robot – in other words, whether it should be necessary only to prove that damage has occurred and the establishment of a causal link between the bad robot and the damage suffered by the injured party. 

Furthermore, the Report posits that a possible solution to the complexity of allocating responsibility for damage caused by increasingly autonomous robots could be an obligatory insurance scheme, as is already the case, for instance, with cars, and calls on the insurance industry to develop new products and types of offers that are in line with the advances in robotics.  This, the Committee indicates, could be supplemented by a fund in order to ensure that reparation can be made for damage in cases where no insurance cover exists. 

So AI engineers beware – developing autonomous cars, medical-bots, robo-advisors could soon become highly regulated, expensive and come with some extensive and burdensome civil liability strings attached.

In the meantime, the European Parliament has issued a consultation on how to best address the challenging ethical, economic, legal and social issues related to the developments in the area of robotics and AI for civil use.