INTRODUCTION:
The legal revolution is the result of technological progress. As technology alters our daily lives and leads to new wrongs and demands for remedies, tort law, a product of the common law, makes the most significant doctrinal leaps and does so faster than any other area of law. Today, the prevalence of smart gadgets has marked the beginning of rapid technical advancement. Computers are interconnected with one another over the Internet. These connections have altered corporate relationships, modern education, healthcare delivery[1], and interpersonal exchanges. Just like every other significant development in society, the law finds it difficult to keep up. Due to the tradition- and precedent-driven nature of law, some of that is a result of outdated ideas and doctrines that are still prevalent. However, like with other liability-inhibiting doctrines, some current liability norms that may have once made sense will need to be re-examined and, in some cases, abandoned because adhering to them is no longer a conscious decision. In order to address liability and responsibility, it is contended that product liability will experience revolutionary changes. It implies that new standards will be necessary to track acceptable user expectations and compel manufacturer accountability. It is unreasonable for a plaintiff to review and enhance millions of lines of computer code, the emphasis on a risk-utility approach that requires proof of a reasonable alternative design will soon become obsolete. It also implies that the criteria used by justice to determine what constitutes proximate causation would change from hard standards to what a manufacturer knew or ought to have known, what it ought to have done, and when it ought to have done it.[2]
TECHNOLOGICAL DEVELOPMENTS UNDER AI:
Three major technological developments under AI are- learning ability, robotics, and connectivity.
The term “learning ability” (machine learning) refers to the fact that digital systems are no longer totally programmed; instead, they are capable of self-learning and, more specifically, of changing their behaviour by incorporating information from the outside world.[3] Firstly, this implies that a programmer need not have a wholly predetermined notion of how a system would behave. Learning system programmers no longer must be fully aware of every possible state the system could take during operation. This also suggests that the programmer has less control over how the system behaves. The ability of digital systems to learn is unquestionably the factor that has the biggest impact on the current debate over the potential benefits and dangers of artificial intelligence as well as who is legally responsible for those dangers. The fundamental issue is how to attribute the potential beneficial or negative effects of deploying AI. Among other areas of law, contract law, liability law, and intellectual property law all involve this attribution.[4]
The integration of digital systems with actual sensors and actuators is referred to as robotics. Robotics, opens a new avenue for damage, allowing digital systems to irreparably harm physical assets like human life and property without the need for a middleman. For interests that are legally protected, this generates additional risk sources.
The third factor, connectivity (interconnectedness), has been studied primarily in relation to critical infrastructures and in the context of security law as opposed to liability law. Robots, or digital systems controlled directly by hardware, are now in direct contact with one another. The idea of totally automated automobiles is probably the most well-known example. Only when a car is connected to a large number of other vehicles at once, from which it continuously receives data and only then calculates its concrete behaviour, can it operate independently through traffic?[5] Additionally, an increasing number of commonplace items are fitted with information processing systems. The industrial sector has assumed a leading position in the development of connectivity. Growing connection brings with it new issues that affect security and safety.
ASSOCIATED RISKS AND CHALLENGES IN RISK CONTROL:
A change in risk administration results from the introduction of digital systems, for duties that were previously handled by humans. Automation transfers power from the consumer to the producer. With the development of learning capabilities, some control is now in the hands of the trainer, who may be the manufacturer or maybe someone else entirely. New potential liable parties also arise with the advent of new value chains, particularly primary and secondary markets for data used to train IT systems that are then used to produce new goods. The data supply side, which consists of the collection and aggregation of training data, is a supplement to the manufacturer side, which entails the creation and manufacturing of IT systems, and the user side, which entails the operation and use of such systems. The most significant factor is that growing interconnection may result in complicated causal chains. The identification of the numerous additional players who might have had an impact on the actual harm, for instance in scenarios where inaccurate data from other vehicles or platforms may be the cause of the damage, will most likely be more challenging in an interconnected world.
LIABILITY RULE -NEGLIGENCE VERSUS STRICT LIABILITY:
NEGLIGENCE LIABILITY -It might be said that all member states operate under the default basis of negligence responsibility. It serves as a tool for influencing the standard of care since it necessitates the violation of a duty in addition to damage and causation. If the required standard of care is followed, fault-based liability may be avoided. Additionally, it gives potential victims incentives to limit harm if possible. Fault-based responsibility only enters the picture if the person (or people) responsible for the damages did not exercise the appropriate amount of care. Duties of care, which are eventually decided by the judiciary, establish the standard of care. The decision is made based on an evaluation that weighs both a conduct’s hazards and potential social benefits. The information of these private actors should be made useful in assessing where the best potential and hazards are for a technology that is still in the development stage. The users of the technology will ultimately have less legal certainty thanks to judicial provisions. This is made worse by the possibility of retrospective bias when choosing particular actions.[6]
STRICT LIABILITY- By fully internalizing the economic hazards of AI, strict responsibility affects not only the amount of care but also the level of activity by igniting private risk knowledge. Additionally, it encourages the improvement of already developed technology and, perhaps, aids in gaining public acceptability. Strict liability can also be a tool for risk distribution, especially when used in conjunction with third-party insurance, which requires liability insurance. Like any liability rule, though, it only functions when it is possible to prove individual causation. It offers a motivation to advance technology development to make it safer. Users of technology will avoid using it as long as they can’t reliably gauge the risk. However, they also have a motivation to advance the current technology until it is appropriate for application. This assumes that the responsible party can advance the technology. Developers and manufacturers are not necessarily the same. However, there will be contractual relationships that permit the transfer of internalization effects, particularly intellectual licensing agreements.[7]
CONCLUSION:
Technology has always influenced product liability law, forcing it to change to reflect the realities of the kinds of products produced and what customers encounter in the marketplace. Consumers are introduced to a new world through connected gadgets, and certain areas of the relevant law will need to be rethought. A connected device’s ownership as a functional object may no longer be completely vested in the buyer but rather shared with the manufacturer, who supports the device’s proprietary software. It may be more accurate to refer to the two parties as co-owners or service users rather than manufacturer and client. The manufacturer retains regular, if not constant involvement with the product, giving it a sense of shared ownership. The core functions of connected devices include gathering real-time data on their use and operation, preserving the device’s usefulness through software and security upgrades, and providing helpful information to customers. The new connection that results from such qualities will inevitably impose additional duties that, if neglected or improperly carried out, may give rise to liability. It may even lead to a revival and expansion of strict liability to the degree that consumers can anticipate relying on those features. The expansion of personal jurisdiction in state courts is perhaps the outcome that is almost inevitable. The outcome will not be evolutionary; it will be revolutionary.
Author(s) Name: Jiya Joshi (Symbiosis Law School, Pune)
References:
[1] Judith Steinberg Bassow, ‘“Medical Products and Services Liability: Public Policy Requires Legislative Innovation and Judicial Restraint”’ [1976] 53 Denv LJ 387.
[2] Bryant Walker Smith, ‘Automated Driving and Product Liability’ (1 October 2016) <https://papers.ssrn.com/abstract=2923240> accessed 10 November 2023.
[3] Lori M Linger, ‘“The Products Liability Directive: A Mandatory Development Risks Defense”’ [1990] 14 Fordham Int’l LJ 478.
[4] Robert S Peck, ‘“The Coming Connected-Products Liability Revolution” 73 Hastings LJ 1305Peck’ [2022] 73 Hastings LJ 1305Peck.
[5] Gurney and Jeffrey, ‘Sue My Car Not Me: Products Liability and Accidents Involving Autonomous Vehicles’ [2023] 2013 U. Ill. J.L. Tech. & Pol’y 247 <https://ssrn.com/abstract=2352108>.
[6] Stijepko Tokic, ‘“The Interplay between User Innovation, the Patent System and Product Liability Laws: Policy Implications”’ [2017] 99 J Pat & Trademark Off Soc’y 20.
[7] W Kip Viscusi, ‘“Does Product Liability Make Us Safer”’ [2012] 35 Regulation 24.
