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Is a manufacturer of an autonomous vehicle liable even though he was not directly involved in the accident? With regard to the question of liability in connection with autonomous driving – apart from the much-discussed questions in the context of producer liability –, it is worth comparing this situation with the liability of operators of "user-generated content" platforms such as YouTube and Facebook.


1. Comparability of manufacturers of autonomous vehicles and automated media platform operators

At first glance, the operators of "user-generated content" platforms (hereinafter: "UGC platforms") seem to have nothing in common with manufacturers of autonomous vehicles. On closer examination, however, one finds that the constellations are similar with regard to the question of liability for infringements. Both the infringement of intellectual property rights (such as copyrights) on UGC platforms and the infringement of legal interests by autonomous vehicles are generally three-person constellations:


In the case of UGC platforms, companies such as Google and Facebook provide users with platforms on which they can perform various actions (such as uploading videos, images or music). The operators of UGC platforms maintain and continuously optimize the UGC platforms and provide their users with revised versions. If a third party's legal interests are infringed (e.g. infringement of copyrights), for example, because the respective right had not been licensed, it is primarily the user of the UGC platform who is directly involved, not the operator of the UGC platform. This is because the user has committed the infringing act on the UGC platform.


In the case of autonomous vehicles, the manufacturer provides the user with an autonomous vehicle together with the required software. It is not beyond reason that the manufacturer (or a third party assigned by the manufacturer) maintains and optimizes the vehicle's software and provides users with continuous updates. If a third party's legal interests are infringed as a result of a road accident, it is primarily the user of the autonomous vehicle who is directly involved, not the vehicle manufacturer. This is because the user was using the autonomous vehicle when the infringement was committed.


What operators of UGC platforms and manufacturers of autonomous vehicles thus have in common with regard to the issue of liability is that they are involved in a specific infringement of legal interests. The operators of UGC platforms and the manufacturers of autonomous vehicles both provide the user with the item that led to the infringement. In both cases, however, the user stands between the operators of UGC platforms or the manufacturers of autonomous vehicles respectively and the person whose legal interests have been infringed.


2. Liability of UGC platform operators

The starting point for the liability of the operator of a UGC platform for legal infringements on its platform is the provision and operation of the platform (see ECJ, judgment of 26 April 2017, case C-527/15 - Stichting Brein/Wullems).


In order to assess whether the operator of a UGC platform is liable for infringements committed by its users, German courts distinguish in intellectual property law between liability as perpetrator or accessory and the so-called "liability of a disquieter" (Störerhaftung). The main difference is that only persons who are perpetrators or accessories in a tortious act are liable for damages. In contrast, the liability of a "disquieter" only gives rise to a claim for injunctive relief.

2.1. Liability as a perpetrator or accessory

The question as to whether a person has participated in a tortious act as a perpetrator or accessory in a way that gives rise to civil liability is judged by the German courts on the basis of the legal principles developed in criminal law (see BGH, judgment of 05 February 2015, case I ZR 240/12 para. 35 – Kinderhochstühle im Internet III). Here, a distinction must be made between the committingof an offence by the person himself/herself and the attribution of an offence committed by another person by way of complicity or participation as an accessory:


The perpetrator of an infringement is the person who commits the infringement himself/herself, directly or indirectly. According to the German courts, usually, the user rather than the UGC platform is the perpetrator. The user, not the UGC platform, commits the infringing act (see OLG Hamburg, judgement of 01 July 2015, case 5 U 87/12 para. 138 – YouTube). The UGC platform does not commit an own act that would constitute the offence, such as a communication to the public or a reproduction of copyrighted content (see BGH, judgment of July 12, 2012, case I ZR 18/11 para. 16 – Alone in the Dark).


The question as to whether UGC platforms such as YouTube or Uploaded may, however, actually be committing suitable acts and may therefore be liable as perpetrators after all, was recently referred to the European Court of Justice by the Federal Court of Justice (see BGH, decision of September 13, 2018, case I ZR 140/15 – YouTube and BGH, decision of September 20, 2018, case I ZR 53/17 – Uploaded).


This is because the ECJ emphasizes the "central role" of a UGC platform in connection with the question of whether an action is intentional. A UGC platform takes a central role if it acts in full knowledge of the consequences of its behavior in order to provide customers with access to copyrighted content (see ECJ, judgement of 14 June 2017, case C-610/15 Rn. 26 – The Pirate Bay). At the same time, the ECJ considers it to be important whether the UGC platform pursues profit-making purposes (see ECJ, judgment of June 14, 2017, case C-610/15 Rn. 29 – The Pirate Bay).


According to ECJ case law, the operator of a profit-oriented UGC platform can thus be held liable as a perpetrator, as the platform provides its users with access to content on the platform. The liability of the operator of the UGC platforms is independent of the user’s liability as a perpetrator, which is exclusively linked to the uploading process.


For the attribution of the infringement of legal interests by way of complicity, the courts require a conscious and intentional act of collaboration, whereby knowledge of the specific pending principal offence is required (see BGH, judgement of 05 February 2015, case I ZR 240/12 para. 35 et seq. – Kinderhochstühle im Internet III). It is held that UGC platforms do not have this knowledge, because the infringing contribution by the user reaches the platform without the UGC platform obtaining prior knowledge thereof (see OLG Hamburg, judgement of 01 July 2015, case 5 U 87/12 para. 274 – YouTube).


The attribution of the infringement of legal interests by way of participation as an accessory requires, in addition to an objective act of participation, at least conditional intent with regard to the principal offence, which must include the awareness of unlawfulness (see OLG Hamburg, judgment of 01 July 2015, case 5 U 87/12 para. 277 – YouTube).


This intent must extend to the specific pending principal offence. It is not sufficient that the operator of the UGC platform anticipates occasional infringements of rights via its service. It is also not sufficient for the operator of the UGC platform to obtain actual knowledge of an infringement after the upload has taken place in the course of further activities (such as verifying complaints or monetizing individual uploads) (see OLG Hamburg, judgment of 01 July 2015, case 5 U 87/12 para. 278 – YouTube). The element of intent is therefore usually the "knock-out criterion" for the liability of the operator of a UGC platform as a participant of an infringement committed on its platform.

2.2. Liability as a "disquieter"

German courts – in contrast to the ECJ – tend to decide against the liability of a UGC platform as a perpetrator or accessory as outlined above and rather assume that such platforms are subject to liability as a "disquieter".


In the case of an infringement of absolute rights (such as intellectual property rights), anyone who – without being a perpetrator or accessory – in any way deliberately and through a proximate cause contributes to the infringement of protected legal interests is liable as a "disquieter". Since liability as a "disquieter" must not be extended excessively to third parties, this liability requires a breach of duties of conduct. The scope of the duties of conduct is determined by whether and to what extent the person against whom claims are asserted as a "disquieter" can be expected, under the circumstances, to inspect or monitor in order to prevent infringements (see BGH, decision of September 13, 2018, case I ZR 140/15 para.48 – YouTube).


The platform must act immediately after notification of the infringement: It must remove the infringing content or block access to the infringing content and ensure that similar infringements do not occur in the future (see BGH, decision of 13 September 2018, case I ZR 1470/15 para. 49 – YouTube). According to past decisions by the German Federal Court of Justice (BGH), the duties of conduct only arise after knowledge has been obtained. The infringing act which is the subject of the notification through which the operator of the UGC platform first becomes aware of an infringement, is not an infringing act that can justify a claim for injunctive relief (see BGH, decision of 13 September 2018, case I ZR 140/15 para. 52 – YouTube).


According to the courts, the extent of precautionary measures that UGC platforms have to take against future infringements depends on "platform-related factors": The decisive factor is, for example, whether the person against whom claims are asserted as a "disquieter" acts without the intention of making a profit and at the same time acts in the public interest or whether he or she pursues his or her own commercial objectives. In addition, it must also be determined whether the facilitated infringement, due to an unclear legal situation, can only be established after carrying out comprehensive legal or factual examinations or whether the infringement is obvious and easy to detect for the person against whom claims are asserted as a "disquieter" (see OLG Hamburg, judgment of July 01, 2015, case5 U 87/12 para. 343 – YouTube).


The specific weighing of the individual obligations to examine and prevent further infringements depends on the circumstances of the individual case: Both the rights holders and the UGC platforms can invoke legal interests protected by fundamental rights, which must be appropriately balanced. An appropriate balance must be struck between the protection of the right holders’ intellectual property rights and the protection of the UGC platforms’ entrepreneurial freedom. Furthermore, the interests of the users of the UGC platform which are worthy of protection may also have to be included in this balancing of rights (see OLG Hamburg, judgement of July 01, 2015, case5 U 87/12 para. 344 – YouTube).


The courts apply these criteria not only to UGC platforms, but also, for example, to the liability of operators of internet marketplaces such as eBay: If the operator of such a platform is notified of a clear infringement, it is not only obligated to block the specific offer immediately, but must also take precautions to ensure to the best possible extent that further similar infringements do not occur. The operator is responsible for preventing such infringements of third-party rights in the future (see BGH, judgement of 05 February 2015, case I ZR 240/12 Rn. 52 – Kinderhochstühle im Internet III).


For the liability as a "disquieter", it is in principle irrelevant whether another person can also be held liable as a perpetrator. This is because the liability as a "disquieter" is, as a matter of principle, not subsidiary to the recourse against the perpetrator. In the case of the operator of an internet platform into which users have posted illegal offers or contributions, the liability of the "disquieter" offers effective legal protection because it is not necessary to take action against a large number of individual users (see BGH, judgment of 26 November 2015, case I ZR 174/14 para. 82 – Störerhaftung des Access-Providers).


3. Application of these principles to manufacturers of autonomous vehicles

The liability of a manufacturer of autonomous vehicles could be linked to the act of making available the autonomous vehicles. This link to liability goes beyond the general principles of producer liability and is comparable to the operation and maintenance of UGC platforms. The actual liability for making available autonomous vehicles that lead to infringements of legal interests due to software errors or operating errors caused by third parties can be examined on the basis of the principles set out above:


By making the vehicle available, the manufacturer of autonomous vehicles may be liable as a perpetrator for accidents related to the operation of the autonomous vehicle. By making the vehicle available for road traffic, the manufacturer takes a central role. Like a UGC platform, the manufacturer provides the user with access to autonomously driven vehicles and acts with the intention of making a profit.


If the ECJ assumes liability as a perpetrator for UGC platforms such as YouTube, this case law could also be applied to the liability of other, platform-like providers. This is because platform-like providers, such as manufacturers of autonomous vehicles, create a similar risk of damage through an action that is comparable to that of the operators of UGC platforms.


On the other hand, a manufacturer of autonomous vehicles is unlikely to be held responsible as an accomplice or accessory for the behavior of the user of an autonomous vehicle in the event of an accident: Transferring the German court decisions on the element of intent in the case of UGC platform operators to the manufacturers of autonomous vehicles, they will usually not be liable due to the absence of intent regarding the specific infringement of legal interests.


Like UGC platforms, the manufacturers of autonomous vehicles usually have no prior knowledge of the specific legal interests that may be damaged by the vehicle. For the assumption of intent in the case of complicity and participation as an accessory, it is not enough if the relevant person merely anticipates occasional infringements.


However, liability as a "disquieter" may apply additionally: Making available autonomous vehicles contributes deliberately and through a proximate cause to the infringement of protected legal interests when an infringement is caused by an autonomous vehicle. If the manufacturer is notified of the infringement caused by the autonomous vehicle, the manufacturer may be under an obligation to ensure that similar infringements based on the same cause of damage do not occur in the future.


This would constitute an obligation to take action upon each specific notification of damage, and would go beyond the general product monitoring obligations. This is because the manufacturers of autonomous vehicles are pursuing their own commercial objectives and can easily detect errors in the vehicle due to the development process they have undertaken. Consequently, the manufacturer would be under a comprehensive obligation to prevent similar infringements which may arise from the specific cause of damage when the vehicles are used.


For the manufacturer, the breach of the obligation to prevent further damage based on the specific cause of damage would mean that the manufacturer may face claims for injunctive relief to refrain from making available autonomous vehicles.


A third party whose legal interests have been infringed could demand that a manufacturer of autonomous vehicles refrain from or cease providing identical autonomous vehicles until the specific cause of damage has been remedied. This claim would go much further than a claim based on the principles of product liability: This claim for injunctive relief would not only apply to the specific vehicle in question, but to all of the manufacturer's vehicles that areidenticalin construction.



Dr Matthias Lausen, lawyer and founder of the law firm Lausen Rechtsanwälte

Lorenz Haidinger, lawyer


* https://www.sueddeutsche.de/wirtschaft/kuenstliche-intelligenz-frau-stirbt-bei-unfall-mit-autonomen-auto-von-uber-1.3913385

GERMANY

Autonomous driving and fully automated media platforms:

When technology is more advanced than law  


Written by Matthias Lausen & Lorenz Haidinger,

Lausen

For a long time, the question of liability for damage caused by artificial intelligence and autonomous driving was a "niche topic". In March 2018, this question first came to the public's attention: An autonomous Uber test vehicle hit a pedestrian in Tempte in the US State of Arizona as she was crossing the street*. Besides the question why the terrible accident happened, the following question was raised: Who is actually liable for accidents that are not "caused" by a human being, but by software?

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Lorenz Haidinger

Matthias Lausen established the law firm in 1995, with a focus on copyright law and media law. From 1989 to 1991, Dr Lausen was scientific assistant of the Stiftung Wissenschaft und Politik (institute for science and politics), Munich. From 1994 to 2016, he has acted as manager of the Institutfür Urheber- und Medienrecht (institute for copyright and media law), Munich. Since 2001, Dr Lausen has been involved in the development of concepts for, and conduction of, media law expert seminars in cooperation with the Akademie des Deutschen Buchhandels (academy of the German book trade). From 2003 to 2011, he lectured on media law at the Ludwigs-Maximilians-Universität, Munich and has been, since 2006, a lecturer of a qualification training for specialised lawyers for copyright law and media law, organised by the Institutfür Urheber- und Medienrecht, Munich.

Biography

Matthias Lausen

Lorenz Haidinger studied law in Munich and Uppsala (Sweden) and did his legal clerkship in Munich. He worked for Munich law firms and as a proofreader of practice exams for the First State Examination in Law at a revision school. Lorenz Haidinger is with Lausen Rechtsanwälte since 2018, specializing in copyright and media law.

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