EN 
DE Product quality and competitive advantage through knowledge of the legal liability system
Author: Susanne Meiners, NewTec GmbH
Contribution – Embedded Software Engineering Congress 2016
Technological innovations shape our everyday lives. These innovations must be aligned with existing law to protect the rights of those affected. Currently, many questions remain unanswered, especially regarding autonomous or self-developing systems, and data protection and data security. "Industry 4.0" is characterized by both uncertainty and hope: the media reports on hacker attacks and accidents involving autonomous vehicles, but also on technological inventions that simplify our daily lives and strengthen our economic position. The goal is to continue driving innovation and developing secure technical systems by gaining insight into the legal liability framework.
legal system
Our legal system is divided into three areas: civil law, criminal law, and public law.
Civil law provides the basis for contractual and tortious liability, warranty, and product liability. The parties involved have equal rights and can assert their claims through the civil courts.
Criminal law deals with tort liability, whereby the state, represented by the law enforcement authorities (prosecutor's office and police), can impose sanctions within the framework of criminal proceedings if a criminal offense has been committed.
Public law governs the relationship between individual citizens and the state, as well as the relationship between other holders of sovereign power. The relationship between state and citizen is characterized by the principle of hierarchy.
Civil law
In civil liability cases arising from contract or tort, fault is usually a prerequisite. This means that subjective culpability must exist.
The conduct of the injured party/claimant is also taken into account. If contributory negligence (§ 254 BGB) can be attributed to them, this can reduce their claims against the liable party. The injured party must therefore bear the responsibility for their own lack of "due diligence in their own affairs.".
From a liability perspective, the most important legal bases for claims are those of warranty, product liability, and tortious liability.
Warranty and guarantee:
In a purchase or works contract, in addition to the delivery of the item, an obligation is also undertaken to deliver it free from material and legal defects (§§ 433 I, sentence 2, 633 I BGB).
This will raise new questions. Is there a defect if a system changes independently and intentionally during use? Must the product developer implement safeguards that prevent certain changes? And what might a warranty statement extending beyond the statutory warranty look like that is beneficial to both contracting parties?
Product liability (ProdHaftG):
Product liability allows claims for damages to be brought directly against the manufacturer of a defective product. A contract between the manufacturer and the injured party is not required. The manufacturer is liable for "placing" a defective product on the market; fault is not a prerequisite. For evolving systems, it is necessary to clarify what system features a product will have and whether it will be necessary to integrate limitations on its scope of action.
Tortious liability under § 823 of the German Civil Code (BGB):
Civil law provides for tort liability, which is similar to that in criminal law. In criminal law, the sanction is imposed by state authorities. However, the injured party cannot derive any claims for damages from this to compensate for their losses. For this purpose, they must rely on civil law. In this way, claims can be asserted arising from injury to body, health, freedom, property, or other protective rights. Civil and criminal proceedings are independent of each other.
For example, if a burglar breaks into a house, they must pay a fine or face imprisonment. Criminal courts are responsible for this. The victim only receives compensation for the damages incurred by the burglary if they sue the burglar for damages in a civil court.
Criminal law
Technical systems could become relevant under criminal law if they are the object or means of committing criminal offenses.
Every tortious act presupposes the existence of fault. The question raised, whether technical systems are also capable of fault, must be answered in the negative.
In the context of technological progress, the most relevant criminal law provisions are those concerning bodily harm (§§ 223, 229 of the German Criminal Code), homicide (§§ 211, 212, 222 of the German Criminal Code), and dangerous interference with rail, maritime, and air traffic (§ 315 of the German Criminal Code). This also includes all provisions concerning data: violation of private secrets (§ 203 of the German Criminal Code), data espionage (§ 202a of the German Criminal Code), data interception (§ 202b of the German Criminal Code), data alteration (§ 303a of the German Criminal Code), and computer sabotage (§ 303b of the German Criminal Code).
Public law
Within the realm of public law, the state, as a sovereign entity, performs its duties. These often serve to protect important legal interests. Examples include data protection regulations, environmental standards, workplace safety regulations, and similar provisions. Public law also encompasses the implementation of EU directives. These directives contain stipulations regarding the objectives to be achieved, while allowing for flexibility in their implementation to accommodate national specificities.
State of the current discussion
Several questions have been raised:
Previously, legal action was taken against the person who caused and was responsible for the damage. Now, liability is also being considered for those who failed to prevent the damage from occurring.
It remains unclear how to deal with system configurations that prescribe specific behaviors for certain hopeless situations, such as in autonomous driving. In such a "dilemma," a person can invoke the so-called extra-legal excusable emergency if, under immense time pressure, they are faced with the choice of violating one legal right or another in order to protect the other. However, the corresponding programming in such system configurations is planned, not created by an emergency. Therefore, the software developer can be held liable for any resulting damages. Currently, there is no other legal solution.
The question has also been raised whether technical systems could be treated as legal entities and whether a liability sum could be set aside for each individual technical system to cover the damage caused.
Further areas of inquiry arise in the field of insurance law. How and under what conditions could technical systems be insured?
Multiple solutions must also be developed for learning and self-evolving systems. Due to the changes they undergo, and which are also the desired outcome, assigning responsibility and enforcing claims for damages is highly complex for those affected. How can it still be determined whether an error occurred initially or developed later, and whether this development should have been reliably prevented during production?
What happens if the user has contributed to the damage himself, and how can the degree of his contribution be determined?
Here it seems sensible to equip the systems with a "black box" in order to be able to trace changes to the system even later.
These discussions are undoubtedly shaped by the uncertainties that accompany the numerous innovations. These include sabotage by incompetent users or malicious attacks, as well as the vulnerability of systems to malfunctions. Data security and privacy have already been affected and will continue to be. Past examples confirm this.
It will be important to identify the critical points within each system so that there is a chance to eliminate them.
And it will benefit companies that invested early in so-called "soft skills." If communication structures and conflict resolution strategies are reliably established and integrated, change can be implemented quickly and effectively where needed.
A reliably practiced corporate culture enables companies to respond appropriately to upcoming challenges.
The fear of legal liability must not become a brake on innovation for us.
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