Tim Engelhardt, ‘Who pays? On artificial agents, human rights and tort law’

The decisions and actions of artificial agents increasingly shape our world, affecting the lives, and thereby, the human rights of the individuals who use these agents, but also those who may be unwittingly affected by them. The quintessential example of the malfunctioning autonomous car causing a serious accident continues to inspire debates among scholars, politicians and the general public. But looking beyond this scenario, it is not difficult to imagine other situations which will give rise to complex questions regarding the interplay between artificial agents and human rights: the refusal of health insurance based on an opaque and faultily designed automated data analysis may make urgently needed medical care impossible; medication prescribed as a result of an expert program’s advice may cause unforeseen serious side-effects, or; counter-disease measures implemented on the recommendation of an epidemiological real-time data analysis may be focused on the wrong region as a consequence of a calculation error.

In each of these scenarios, if damage occurs as a result of the direct or indirect involvement of artificial agents, the following questions inevitably arise: who is legally responsible for the injury or damage? and how can the victim be compensated? This chapter deals with these questions. After laying out the requirements established under international human rights law regarding the availability of remedies to victims of human rights abuses, this chapter focuses on how this right to remedy may be provided for under tort law, as it is known in common law countries, or what other jurisdictions often refer to as extra-contractual liability. Using a comparative lens by providing an analysis under both German and US law, the chapter lays out the general concepts from fault-based liability schemes to strict(er) liability regimes, including product liability frameworks, and investigates their applicability in the context of decision-making by a range of artificial agents. The final section of this chapter gives a brief overview of the discussion around suggestions that autonomous artificial agents may be granted legal personhood.

Tim Engelhardt, Who pays? On artificial agents, human rights and tort law, in Ben Wagner, Matthias C Kettemann and Kilian Vieth (eds), Research Handbook on Human Rights and Digital Technology: Global Politics, Law and International Relations, Edward Elgar, Research Handbooks in Human Rights series. Published in print: 25 Jan 2019. ISBN: 9781785367717.

First posted 2019-01-26 14:27:21

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