Driverless cars - Why our use of language is important

76% of the public are still hesitant about sharing the roads with self-driving vehicles, but the sector is expected to be worth £28b in the UK and £800b globally in just 10 years’ time.

In January 2022, following a three-year consultation, the Law Commissions for England & Wales and Scotland therefore published a joint report (commissioned by the Centre for Connected & Autonomous Vehicles) with their 75 recommendations for the automated vehicles landscape.

The 300 page report makes clear that much care will be needed in future when describing the capabilities of autonomous car technology for marketing purposes.

The Report highlights the need for a new vocabulary. Common understandings even of words long used such as “auto” might need to be re-cast.

In July 2020 for example, a German court in Munich found that Tesla’s use of the term ‘Autopilot’ to describe its cars’ autonomous driving capabilities was ‘misleading for consumers’.

Even equipped with the Autopilot software and the optional ‘Full Self-Driving Capability’ package, Tesla models were found to be simply unable to complete a journey without human intervention, thus requiring drivers to still be alert.

What the report makes clear is that  accurately and clearly distinguishing between driver assistance technologies and self-driving is crucial, and that getting this wrong will inevitably compromise safety because of the potential for confusion on the part of the driver. This problem is aggravated if marketing gives drivers the misleading impression that they do not need to monitor the road while driving in cases where technology is not sufficient to categorise the vehicle as genuinely self-driving.

What do businesses need to consider when describing autonomous vehicles?

When considering how they market autonomous car technology, businesses will therefore need to adjust their practices and consider how they describe automated vehicles. Terms such as “self-drive”, “self-driving vehicles”, “drive itself”, “driverless cars” and “automated vehicles” may be attractive but are prone to misuse.

While all of this is not yet law, the new and used car retail sector does need to be aware about the likelihood that legislation is coming in the very near future. Although there is little evidence that issues surrounding this technology are currently creating commonplace problems, there have been instances when drivers appear to have been unaware of its limitations and accidents have occurred.

All companies operating or expecting to operate in this space will therefore need to pay careful attention to the envisaged changes – particularly those relating to liability of manufacturers, software developers and their senior managers, as well as marketing.

Transparency and safety-first are the watchwords of the Report.

Where can I read the Automated Vehicles Report?

You can read Law Commission’s Automated Vehicles Report here. The Report also contains a helpful summary detailing the new vocabulary, legal actors and regulatory regimes, which you can also view below:

In summary:

  1.     A new vocabulary:

Self-driving will need to be written into law. An “automated vehicle” will mean a vehicle capable of driving itself without being controlled or monitored by an individual for at least part of a journey. This will put bright daylight between true driverless vehicles and driver-support technologies such as lane assist or adaptive cruise control. This has considerable legal consequences; it is a paradigm shift because for the first time in perhaps 100+ years because the human driver will no longer be the sole focus of responsibility for road safety.

  1.     3 new legal actors:

The Report proposes three new legal actors:

  • ASDE: Authorised Self-Driving Entity – the vehicle manufacturer or software developer suitably funded and closely involved in assessing vehicle safety who puts an automated vehicle forward for authorisation as having self-driving features.
  • UIC: The user-in-charge – the qualified and insured human in the driving seat in a position to operate the driving controls but there while a vehicle is driving itself, and otherwise immune from responsibility. In other words, less than a driver, but more than a passenger.
  • NUIC: No user-in-charge – an organisation that oversees vehicles without a user-in-charge, for example, a delivery van or taxi.
  1.   New regulatory regimes:

The Report recommends:

  • A shift in responsibility from drivers to manufacturers and software developers and thus the removal of criminal responsibility for the person in the seat. Users-in-charge will have immunity from a range of offences that apply to vehicle drivers, ranging from dangerous and careless driving, to exceeding speed limits or running red lights. For the purposes of civil liability, the Automated and Electric Vehicles Act 2018 will apply. Victims who suffer injury or damage will not need to prove that anyone was “at fault”, the insurer will simply compensate the victim directly. Bizarrely however, the Report doesn’t deal though with what happens and who is at fault when there is a collision between two autonomous vehicles.
  • The implementation of vibrations, lights and sounds to clarify the “transition demand” when control is relinquished to the human driver and the establishment of remote response centres where staff can assist self-driving vehicles in overcoming unfamiliar obstacles.

Subject to the usual due diligence defences, vehicle manufacturers or software developers and their senior managers will be criminally responsible for misrepresentation or non-disclosure of safety-relevant information.

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