Driverless cars in Switzerland: Legal admissibility, liability and data protection

Cars, Driverless, Liability

Automatic parking systems, lane departure warning systems, traffic jam assistants and active speed systems, which automatically maintain a by the driver defined distance to the vehicle in front are nowadays part of the standard equipment of high-end vehicles. Not only the car manufacturers themselves, such as Mercedes-Benz, Volvo, Nissan and Audi, but as well and especially the technology giants Google and Apple are working on the next step on this journey of "automation of vehicles". From 2020 on - as predicted by experts - the first fully automated vehicles will be available on the market. But already today, the first driverless cars are on the roads of Switzerland. For example, in spring 2015 the Federal Department of the Environment, Transport, Energy and Communications (DETEC) approved a pilot project of Swisscom for tests with driverless cars.

Driverless cars raise legal issues, in particular regarding liability and data protection. Some of these questions - without pretending to fully answering these question - will be discussed below.

I. Legal admissibility of driverless cars in Switzerland

The current Federal Road Traffic Act (SVG) in Switzerland rules in Art. 31 para. 1, that each vehicle must have a driver and the driver must control the vehicle permanently. According to Art. 3. para. 3 of the Federal Road Traffic Regulations (RTR) the driver is thus not allowed to release the steering wheel while driving. Based on this presumption a revision of the Federal Road Traffic Act (SVG) and the associated Federal Road Traffic Regulations (RTR) would be necessary in order to introduce driverless cars on the Swiss market.

The Vienna Convention on Road Traffic was revised in the year 2014. With the revision, which is expected to come into force in 2016, automatic systems are considered as legal, if they can be turned off at any time by the driver or if the driver can over-control the system at any given time. Therefore, partially autonomous driving will be allowed as soon as the revision of the Vienna Convention on Road Traffic comes into force. However, it is to be expected, that fully autonomous driving will only be legalize - both in the Vienna Convention on Road Traffic and as well as in the national laws - once the technical development is thoroughly tested.

II. Liability under Swiss law

Under the current Swiss law, the holder of a vehicle is liable for damages, which occurred due to the operation of his vehicle (Art. 58 para. 1 SVG). This liability of the vehicle owner is a strict liability, which applies regardless of any fault. Therefore, whenever a vehicle owner is sued for damages he can not object, that the damages did not occurred due to his fault or that he had not steered the vehicle. Furthermore, the compulsory insurance of the vehicle owner and the right of the person, who has suffered damage to directly claim the damages against the insurer, ensures that the damages sustained will be replaced.

The strict liability of the vehicle owner and the right of the person, who has suffered damage to directly claim the damages against the insurer, fits properly on driverless cars. Because the strict liability of the vehicle owner is not connected with the driver of a vehicle, but rather with the holder of a vehicle, which takes the advantage from the vehicle, it does - on a first stage - not matter at all, if at the time when the damages occurred a "computer/system" or another driver controlled the car.

The insurer of the vehicle holder, which will, as a rule, initially pay the entire damage and can not defense himself against the damaged party, will of course not sit on the entire damage. Today, the insurers of the vehicle owners take recourse against the driver of the car, if the before mentioned was at fault. With regard to the driverless car it will usually not be the driver which is - at least partially - at fault, but rather a computer or system, which did not work properly. It follows from these considerations, that in such a case the insurers of the vehicle owners - unlike today - would no longer take recourse against the driver (which does not exist anymore in the common sense), but would rather need to take recourse against the manufacturer of the vehicle or against the software manufacturer.

However, the current Swiss law does not provide the possibility of taking recourse against the manufacturer of the vehicle or against the software manufacturer. The insurers of the vehicle owners are nowadays not entitled to take recourse against the manufacturer of the defective vehicle or the manufacturer of the defective software, if the before mentioned are only strictly liable, as it is the case concerning product liability. By introducing the possibility to take recourse against strictly liable persons or entitles and thus against the vehicle or software manufacturer, this deficit could be corrected ("As well supported by Andrea Haefeli/Arnold Rusch, Klagen gegen Fahrzeughersteller – vom kastenförmigen Range Rover und von fehlenden Airbags, HAVE 2014, 370 ff., 373 f; Nevertheless an introduction of an integrated right of taking recourse was rejected by the parliament in the course of the planned revision of the VVG in the year 2013.").

In this sense Volvo has as a first car manufacturer in the beginning of October 2015 announced that Volvo will take responsibility for any damages caused by driverless cars. Background of this statement may be, that pending regulatory issues as the liability constitute a central and so far not overcome obstacle for the introduction of driverless cars on the market.

III. Data protection

Driverless cars must recognize the environment in order to function. This basically happens with the help of sensors and cameras. On these video recordings other persons may be recognizable or identifiable. Under Swiss data protection legislation such processing of personal data is permissible only, if it is lawful, i.e. justified by the concerned person's consent, by an overriding private or public interest or by law. Regarding the so-called "Dashcams" the Federal Data Protection and Information Commissioner (FDPIC) took stand and stated, that whether traffic safety nor the use of evidence provides a sufficient justification. Therefore, the use of "Dashcams" and the hereby recorded materials constitute an unlawful privacy violation.

In the same sense, a justification for the recording of the cameras of driverless cars should only restrainedly be assumed. Nevertheless, storage of the video material for a very short duration or the complete absence of storage could qualify the use of cameras in driverless cars as permitted. Whenever this is not sufficient, tools, which anonymize people and faces, must be used to protect the privacy of individuals.

IV. Links

* Dr. Martin Eckert | Luca Hitz

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