In our previous article, we included various views on the legal nature of artificial intelligence and, by making an evaluation on the subject, emphasized the importance of the concept of electronic personality developed by the European Parliament for artificial intelligence in terms of the development of law.[1] In this article, we will examine the legal liability of artificial intelligence with reference to our previous article.
Considering that advanced technological developments are relatively weak, it is likely that semi-autonomous robots with artificial intelligence and intelligent robots will be used in Turkey in the near future. Since the use of fully autonomous artificial intelligence robots does not seem possible in the near future, there is no need for regulations regarding this in Turkish Law for now. Therefore, in this article, the legal liability of semi-autonomous artificial intelligence robots and intelligent robots will be evaluated in terms of Turkish Law and strict liability provisions will be discussed. It should be noted that strict liability cases will find application in businesses and real persons using artificial intelligence.
• Equity Liability
Article 65 of the Turkish Code of Obligations stipulates the liability of those who do not have the power to distinguish. According to this;
If equity requires it; The judge decides to compensate the damage caused by the person who does not have the power to distinguish, in whole or in part.
As can be understood from the provision, if equity requires it, if there is an element of unlawfulness, damage and a causal link between these two, the person who lacks the power to distinguish is held responsible for the damage he caused, even if he is not at fault. By comparison, if this provision finds application in terms of artificial intelligence (since there is no fully autonomous artificial intelligence), the owner or operator of a semi-autonomous artificial intelligence will be liable for the damage caused by artificial intelligence. This provision is one of the provisions on which the argument that accepts the legal nature of artificial intelligence as goods is based. Therefore, if artificial intelligence is accepted as goods, it will be possible for the owner to compensate for the damage caused by artificial intelligence through equity liability.
•Care Liability
Turkish Code of Obligations deals with the responsibility of care under three separate headings: the liability of the person who employs people, the responsibility of the person who keeps animals and the responsibility of the building owner. Among these provisions, the liability of the employer is especially important in terms of the legal liability of semi-autonomous artificial intelligence. In accordance with Article 66 of the Turkish Code of Obligations;
The employer is obliged to compensate for any damage caused to others by the employee during the performance of the work assigned to him.
As can be seen, the Law regulates that the employer will be responsible for any damage his employee causes to others during the performance of the work. By analogy, it can be said that the operator will be responsible for the damage caused by the semi-autonomous artificial intelligence robot in its business while doing the job for which it was programmed.[2]
If the employer proves that he took the necessary care to prevent damage from occurring while selecting his employee, giving instructions regarding his work, and supervising and supervising, he will not be liable.
In this clause, known as the presumption of salvation, the Law stipulates that the employer will not be liable if he shows the necessary care. One view in the doctrine suggests that the presumption of salvation will not apply to the operator of artificial intelligence.
The employer has the right to recourse to the employee who caused the damage for the compensation he paid, but only to the extent that the employee is personally responsible.
Here, it is stipulated that the employer can have recourse against his employee to the extent of his fault. However, since it is not possible for the operator to have recourse to a semi-autonomous artificial intelligence robot, this provision will not be applicable in terms of artificial intelligence. However, if the damage is caused by an error in the robot’s software, it is possible for the operator to have recourse to the designer of the robot.
As artificial intelligence increasingly begins to be used in household appliances, another view in the doctrine argues that the provision regarding the liability of those who keep animals can be applied to the semi-autonomous robots in question. In accordance with Article 67 of the Turkish Code of Obligations;
The person who undertakes the care and management of an animal permanently or temporarily is obliged to repair the damage caused by the animal.
If the owner of the animal proves that he/she took the necessary care to prevent this damage from occurring, he/she will not be liable.
It is clear that if the provision is applied by analogy, the operator will be perfectly liable for the damage caused by artificial intelligence. At the same time, if the operator proves that he has fulfilled his duty of care, his legal liability will be eliminated as the presumption of salvation will come into play. To reiterate, there is an opinion in the doctrine that the presumption of salvation will not apply to the artificial intelligence operator.
• Danger Liability
In accordance with the danger liability regulated as one of the strict liability cases in the Turkish Code of Obligations; If damage occurs due to the activities of a business that poses a significant risk, the owner of the business and the operator, if any, are jointly responsible for this damage. Therefore, both businesses that use semi-autonomous artificial intelligence in their businesses and other companies working on artificial intelligence will be held responsible, even if they are not at fault, in the event of a significantly dangerous activity.
• In accordance with Article 369 of the Turkish Civil Code titled Liability;
The head of the household is responsible for the damage caused by a minor, a disabled person, a person with mental illness or mental weakness, unless he proves that he has kept him under surveillance with the care required by the situation and conditions in the usual manner, or that he could not have prevented the damage from occurring even if he had shown this care and attention.
According to the opinion advocating that semi-autonomous robots be considered as persons lacking the power of appeal, this provision may find application since a semi-autonomous robot used at home can be considered a family member. In other words, the head of the household will be legally responsible for the damage caused by a semi-autonomous household appliance unless he proves that the damage could not have been prevented even if he had taken the necessary care and attention.
Conclusion;
Although discussions on the legal nature of artificial intelligence continue, the legal liability of the operator or owner of a semi-autonomous robot can be made by applying the aforementioned provisions of Turkish Law comparatively. However, this uncertainty in the legal nature of artificial intelligence paves the way for more than one opinion advocating the application of very different provisions by analogy. In other words, views on the legal nature and responsibility of artificial intelligence develop through doctrine, and the Turkish Legislator does not have any legal regulation on the subject.
Since there is no legal basis on the subject, we cannot foresee what forms artificial intelligence assets, which we can only deal with in the doctrine, will take in the future, we are of the opinion that applying the existing provisions by analogy can only save the day, and that legal regulations compatible with the information age that can respond to new developments are becoming more and more necessary.
REFERENCE
INCE, Ş., ŞIMŞEK, M. Z., & KAYNARCA, F. (2019). YAPAY ZEKÂ VE ROBOTLARIN HUKUKI SORUMLULUĞUNUN TÜRK YASAL MEVZUATI ÇERÇEVESINDE INCELENMESI. GSI ARTICLETTER, 28.
Turkish Code of Obligations and Related Legislation
[1] For previous article on the subject: https://par.av.tr/en/what-is-artificial-intelligence/
[2] INCE, Ş., ŞIMŞEK, M. Z., & KAYNARCA, F. (2019). YAPAY ZEKÂ VE ROBOTLARIN HUKUKI SORUMLULUĞUNUN TÜRK YASAL MEVZUATI ÇERÇEVESINDE INCELENMESI. GSI ARTICLETTER, 28