Artificial Intelligence (AI) devices are quickly integrating into everyday life. These devices are supposed to make life easier and safer, but what happens when someone is injured after using a defective AI product? Who is the responsible party, the manufacturer of the product or the developer of the AI itself?
Let’s use an example of 2 pedestrians struck by cars. The first pedestrian recklessly walks out into a busy road and is hit by a human-operated vehicle. If the case is brought before the court, the court would likely determine that, under the circumstances, the driver wasn’t reasonably able to avoid hitting the pedestrian.
The second pedestrian acts in the same manner. However, this time the vehicle in question is autonomous and carrying 1 passenger. It swerves to miss the pedestrian and strikes a second vehicle.
How would this accident be handled? How much responsibility does the AI software carry?
If the mapping software in the vehicle used the wrong coordinates or the cameras didn’t scan the area correctly to notice the pedestrian in time, would the manufacturer or developer shoulder the responsibility over the passenger? What about upgrading the software? Could missing a software update leave a human driver free of guilt?
With advancements in AI technology, these questions are no longer purely hypothetical. Although AI legislation has been enacted in some areas of the world, Canada currently has no specific legalization dealing with product liability and AI tech. Under current products liability, liability can be imposed in 3 areas:
- In tort
- Legislation for the sale of goods and consumer protection
Until a time when specific AI product liability legislation is drawn up, designers, manufacturers and retailers will be forced to wade through the current system.
It’s possible for AI manufacturers to find themselves liable for any damages that occur in the event of a breach of condition or warranty within a contract.
Sales contract conditions are defined as “a fundamental obligation imposed on either of the parties, the performance of which is vital to the contract.” By comparison, a warranty is defined as “a promise or statement of fact about goods that is collateral to the main purpose of the contract of sale, and may be expressed or implied.”
When going into contractual or warranty situations, designers and manufacturers of AI tech need to meet all of the conditions so they can avoid being hit with a breach of contract. Additionally, any included warranties need to be distinguishable from the included conditions so it’s easy to tell when a breach of contract is possible.
It’s likely that product liability for AI technologies will remain within the tort of negligence, like most other product liability claims. Successful negligence action cases typically involve plaintiffs that establish negligence on the part of the manufacturer.
Additionally, plaintiffs must also prove that the plaintiff and defendant had sufficient proximity between them in which to give cause for a legal obligation, also known as a duty of care. If a duty of care can be established, the defendant manufacturer will be held to the expected standard of care and skill by the court.
In the case of products using AI tech, the most common allegations will arise from negligent design. Defects in design typically occur when products are manufactured as intended; however, the design either leads to a malfunction or a risk of harm that could have been mitigated if the manufacturer used a different design.
Legislation for the sale of goods and consumer protection
Legislation for the sale of goods has implications for specific conditions within sales contracts. Once a buyer and seller reach a contractual agreement, sellers of AI tech are obligated to abide by specific conditions. These conditions are:
- Goods meet the quality to be merchantable
- Goods will provide a specific purpose
Sellers may be liable—without the need for proof of fault or negligence—when products containing AI fail to meet these specific conditions. Furthermore, when AI-infused products are bought from a retailer, purchasers can only sue the retailer. This is because there isn’t any contract made between the purchaser and the manufacturer. The retailer, however, can sue the manufacturer to repurchase the product.
With Artificial Intelligence still in its early stages and its popularity continuing to grow, this is only the beginning of legislation that will involve AI tech.