Automated vehicles and potholes on the road to prosperity
By Weightmans Motor Technology Group
Kurt Rowe, Associate and Emerson Wallwork, Partner
Over the years we have seen a steady development in the technologies available for use in personal and commercial vehicles. We are reaching a position where the digitally connected nature of our vehicles means that they increasingly resemble computers with wheels and an engine. Our vehicles collate a significant amount of data in respect of how the vehicle is performing, and how it is being driven on our roads.
Commercial risks and benefits
This data creates tangible benefits especially where it is introduced into commercial fleets. Such benefits as improvements in accident reporting, fraud and theft detection and prevention, driver training and education, time management, load tracking, maintenance scheduling, route optimisation and human resource management will all boost efficiency and maximise returns on investment for fleet operators.
However, whilst the introduction of digitally connected technologies into fleets undoubtedly brings commercial advantage, it also opens up numerous information and data security issues.
It is highly likely that the data collated by telematics technologies will be construed as ‘personal data’. This means employers must ensure they meet their obligations under the Data Protection Act 1988 (“DPA”) and the forthcoming Data Protection Bill which complements and extends the scope of the EU General Data Protection Regulation. There are requirements relating to obtaining the consent of the data subject (which may be more than just the employee), along with the processing, use, retention and destruction of that data - and have clear policies in relation to all this.
The importance of data security cannot be underestimated. The fact that our vehicles are digitally connected means they are vulnerable to a cyber incident. Fleet operators have to work hard to evaluate their new exposures as well as how digitisation is changing the way they approach the security of their digital assets which will include the personal data of themselves, their employees and even their customers. This data could be highly damaging in the wrong hands.
Nonetheless, with correct governance and effective legal advice, these issues can be effectively managed. We have no doubt that investing in digitally connected technologies and more autonomous systems can future-proof businesses and have a highly beneficial effect on a fleet operator’s bottom line.
The insurance framework
Data collated by digitally connected vehicles could provide additional benefits through a reduction in insurance premiums, as well as creating a valuable tool for dealing with employer’s liability, public liability, and road traffic accident claims. Until recently, there has been no insurance framework for the development of autonomous vehicles and partially autonomous vehicles for use on our roads. This looks set to change with the
Automated and Electric Vehicles Bill (“the Bill”) having been introduced to Parliament on 18 October 2017.
The Bill introduces changes which will make an insurer liable for damage caused by an automated vehicle when driving itself. It also provides a mechanism for the insurer to recover from another responsible person including the manufacturer if legal liability ultimately rests with them. This goes some way to establishing the insurance framework and perhaps addresses access to justice concerns related to a possible unequal bargaining power if members of the public were required to pursue manufacturers themselves.
However, it does not deal with the very real issues arising out of the collation, use, and availability of data. We have already explored the fact that our digitally connected vehicles collate large amounts of data and the lack of provision within the Bill for rules relating to the sharing of the data collated is potentially a major shortcoming. Complex situations may well arise in which the driver, the manufacturer, the software programmer, or a combination, could be liable for an accident. In these situations, it will be the data collated and stored by the vehicle that will be the deciding factor.
The need for sharing and access to the data stored in our vehicles can be illustrated by reported incidents involving Tesla vehicles related to their Autopilot feature. These incidents raised a number of questions, notably: Who is in control? What happens during the hand-over of control? And if the driver could - and should - have assumed control?
All very important questions which are almost impossible to answer without access to the data collected by the connected vehicle. Although it should be noted that Tesla were very quick to share the vehicle data in these incidents seeming to acknowledge that without access to the data collected by automated and partially automated vehicles, insurers have little hope of being able to determine liability. Some thought should therefore be given to including a mechanism for the sharing of that data with insurers and the regulatory authorities.
Whilst digital technologies no doubt bring with them a better understanding of customers and our businesses but competing commercial and moral viewpoints need to be carefully balanced to avoid losses and significant reputational harm. We also need to ensure that our legislative and regulatory regimes are fit for purpose to protect the right of data subjects whilst not impeding innovation and commercial enterprise.
This article originally appeared in the Winter 2018 issue of InView magazine. All rights reserved. Further duplication without permission is prohibited. Visit InView 5 magazine.