This article is written by Aryashree Kunhambu, pursuing Diploma in Cyber Law, FinTech Regulations, and Technology Contracts from LawSikho.
Artificial intelligence (AI), although not entirely new, is one of the hot topics in the technology world accredited with disrupting the economy and favourably transforming society. It is rapidly being consumed in the mainstream functions of regular users with automated chat boxes, digital voice assistants and smart home devices, AI is everywhere. Policy think tanks and many individual experts specialising in the interface of technology and law have found an interesting question concerning AI. You see, today, there is no legal authority either nationally or internationally that prescribes that AI be a subject of law. This means that any actions or damages arising due to the subsequent implementation and operation of AI will not hold it responsible for such harm caused; bodily or otherwise. The conundrum of who shall be responsible in case of such damage and whether legal personhood should be granted to AI for liability assessment are a few of the topics that shall be covered in this article.
In this regard, I will assess the existing liability regime and examine whether the basic protection provided to victims and the remedies they can avail under the Indian Law is adequate w.r.t. damages caused due to the implementation of AI systems.
What is artificial intelligence?
Artificial intelligence is the method of developing software and systems which can think intelligently like a human mind. AI systems are neural systems that consist of complex algorithms and data sets that are software generated rather than designed by humans. A problem is broken down into countless pieces of information and is linearly processed, bit by bit, to reach a realistic output. Some specific applications of AI include expert systems, natural language processing, speech recognition and machine vision. The human mind cannot understand the calculation or strategies applied by an AI system to reach a certain decision. Therefore, the ‘black box paradox’ or ‘explainability issue’ arises when dealing with artificially intelligent systems and legal liability.
Challenges and risks associated with AI
The legal issues arising due to the liability paradox gives rise to the following challenges;
- Definition and regulatory framework for the operation of AI;
- Liability of humans using IT mediums such as AI software to cause harm;
- Privacy concerns regarding the collection, use and storage of personal data by AI systems;
- Discrimination and bias by AI programs;
- Surveillance by the government via facial recognition technologies and biometric database;
- Use of autonomous military weapons using AI to make decisions regarding when to kill someone;
- The liability of a self-driving car should it malfunction and crash.
The above-mentioned aspects are important areas of the larger issue of determining the liability of AI systems.
Artificial intelligence and determining liability
Ascertaining liability, civil and criminal, for damages or losses resulting from activities of an AI is a matter of priority, as it exercises control over itself in various degrees. Any entity which is granted legal personhood under the law is capable of being entrusted with certain rights and duties. Thus, the question as to if legal personhood should be granted to AI may be an advanced solution to our current liability issue, nevertheless, the merits and demerits of the same must be analysed.
A common problem foreseen by the legal systems is that many companies use AI-powered models based on the ideology that interpretability must be sacrificed for accuracy. These black-box models are created directly from data by an algorithm which means that even the developer of the code cannot interpret how these variables are combined to reach the predicted output. The human mind and the neural networks in an AI do not function in the same manner, thereby, even if all the variables were listed out, the complex functions of an algorithm could not be dissected.
Such a paradox exists as, under English law, a claimant seeking remedy must show factual causation as well as legal causation. Both, the facts showcasing the AI’s illegal actions as well as the immediate injury or damage caused due to such illegal actions to the aggrieved party must be shown. In criminal cases, the actus reus and mens rea must be determined. As there is no way of understanding the internal processing of data in the AI, ascertaining the mental element is impossible.
In some cases, however, even the human mind has exhibited certain ‘black box’ functions where actions taken by such a human could not be justified for any reason. Previously, courts have held humans responsible based on fault-based liability in such cases. Nevertheless, one can conclude that only a legal entity can be subjected to such sanctions.
Legal personhood and status of AI
Kenji Udhara, an engineer who worked in the Kawasaki heavy industries plant was killed by a robot deployed to do specific manufacturing work. This was the world’s first reported death that took place caused by a robot. It was stated that the robot was not switched off while Kenji was repairing it and the robot’s system detected Kenji as an obstacle. It then violently pushed Kenji towards an adjacent machine with its powerful hydraulic arm, instantly resulting in Kenji’s death. This incident took place in the year 1981 and even after all this time, there is no criminal legal framework in the world that has any clarity on how to deal with such instances wherein robots are involved in the commission of a specific crime or injury to an individual.
In Saudi Arabia, an artificially intelligent humanoid called Sophie has been granted citizenship with rights and duties like all of its other citizens. In India, however, AI currently has no legal status as it is still in a nascent stage. The question of ascertaining liability, both civil and criminal, of an AI entity is conditioned upon whether legal personhood may or may not be granted upon it. While there might be moral and legal implications, practical and financial reasons may become an important factor for granting legal personhood to AI systems in the future.
One of the most prominent schemes to determine criminal liability was postulated by Gabriel Hallevy, a prominent legal researcher and lawyer. He proposed a three-fold model to meet the essentials of criminal liability, i.e., actus reus (an act/ omission), mens rea (mental element) and strict liability offences (where mens rea is not required). The three-fold model proposed by Hallevy to examine offences committed by AI systems is;
The perpetration by another liability of AI
A minor, mentally challenged person or an animal who commits a crime is identified as an innocent agent as they lack the required mental capacity to constitute mens rea under criminal liability. The same is applicable in the case of strict liability. However, if they are used as a medium by a perpetrator to advance their illegal actions, then the person giving the instruction would be criminally liable. Therefore, under this model, the AI system shall be assumed to be an innocent agent and the person giving it instructions shall be deemed to be the perpetrator.
The natural probable consequence liability of AI
Under this model, an AI user or programmer who should have foreseen an offence committed by the AI which any reasonable programmer or user ought to have seen as a natural and probable consequence of their actions and should have prevented it by taking the necessary measures accordingly, is held to be liable for the same. The two possible results are firstly where the AI commits an offence due to negligent use or programming then it would not be held liable but when it acts on its own, or in deviation of its programming, then it shall be held liable. So for example, if in the case of the Ahmedabad doctor who performed a telerobotic surgery on a patient 32 km away, the robot started acting in a manner that its programme did not prescribe, then it would be held liable for any harm it would cause.
The direct liability of AI
This model covers all the acts that an AI performs which are not dependent on the programmer or the user. In cases of strict liability where mens rea is not required to be proven, the AI will be fully responsible. For example, if a self-driving car was met with an accident due to over-speeding, then it would be held liable as over-speeding for a self-driving car is a complete red area thus falling under strict liability.
Usually, in a case, where a party is injured and can be compensated for the damage caused due to software, the recourse of criminal liability is not chosen. Instead, the tort of negligence is the path taken. Three elements to constitute negligence are the defendant’s duty to care, breach of such duty and injury caused to the plaintiff due to such a breach. The maker of the software has a duty towards his customer to maintain the standards of care prescribed or could face legal proceedings for various reasons such as;
- Developer’s failure to detect errors in program features and functions,
- An inappropriate or insufficient knowledge base,
- Inappropriate or insufficient documentation and notices,
- Failure to maintain an up to date knowledge base,
- Error due to user’s faulty input,
- Excessive reliance of the user on the output,
- Misusing the program.
Position in India
One can say that the existing regulatory framework at the national and international level for AI systems is inadequate to address the various ethical and legal issues concerning it. Discussed below is the relevant framework that is present in India in the context of ascertaining the liability and rights of AI systems.
The Constitution of India
Under Article 21 of the Constitution, the ‘right to life and personal liberty’ has been interpreted by the Indian judiciary to include within its ambit several fundamental and indispensable aspects of human life. In the leading case of R Rajagopal v. State of Tamil Nadu, the right to privacy was held to be implicit under Article 21 and is relevant with addressing privacy issues arising out of AI in processing personal data. Further, in the landmark case of K.S. Puttaswamy v. Union of India, the Supreme Court emphasised the need for a comprehensive legislative framework for data protection, which shall be competent to govern emerging issues such as the use of AI in India. AI may also be unfair and discriminatory and will attract Articles 14 and 15, which deal with the right to equality and right against discrimination respectively to protect the fundamental rights of the citizens.
The Patents Act, 1970
Patentability of AI, inventorship (true and first owner), ownership and liability for AI’s acts/omissions, are some of the main issues under this Act with regard to AI. Section 6 read with Section 2(1)(y) of the Act does not specifically mandate that ‘person’ must be a natural person, although that is conventionally understood or assumed to be so. At present, AI has not been granted legal personhood and would not fall within the scope of the act.
The Personal Data Protection Bill, 2019
The processing of personal data of Indian citizens by public and private bodies located within and outside India is regulated in this bill. It emphasizes upon ‘consent’ for processing of such data by data fiduciaries, subject to certain exemptions. When enacted into law, this bill will affect the wide application of AI software that collects user information from various online sources to track user habits relating to purchase, online content, finance etc.
The Information Technology Act, 2000
Section 43A of the Information Technology Act, 2000 imposes liability on a body corporate, dealing with sensitive personal data, to pay compensation when it fails to adhere to reasonable security practices. This has a significant bearing in determining the liability of a body corporate when it employs AI to store and process sensitive personal data.
The Consumer Protection Act, 2019
Section 83 of the Consumer Protection Act, 2019 entitles a complainant to bring an action against a manufacturer or service provider or seller of a product, as the case may be, for any harm caused to him on account of a defective product. This establishes liability for the manufacturer/seller of an AI entity for harm caused by it.
The principles of vicarious liability and strict liability are relevant to the determination of liability for wrongful acts or omissions of AI. In the case of Harish Chandra v. Emperor, the court laid down that there is no vicarious liability in criminal law as one’s wrongful acts if the AI entity may be considered as an agent.
Recent studies show that currently, as we are at the transitional stage between ‘Artificial Narrow Intelligence (ANI) or weak AI and ‘Artificial General Intelligence’ (AGI) or strong AI, more advanced stages of development can achieve the production of explainable models of AI systems. Emphasis on the adoption of such explainable models of AI is necessary as using black-box models for high-stakes operations can have immense repercussions without any guarantee or legal sanctions available against the AI model. Besides, such models can also drastically help in understanding problems and solving them. Application of product liability, vicarious liability or even strict liability principles must be shifted to specific liability principles formulated for AI systems in accordance with the rule of law. Thus, achieving such systems is solely possible when AI systems are accredited with legal personhood and a regulatory framework to manage their operation.
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