One of the innovations brought about by technology is the change in the way of doing business. Artificial intelligence is leading this change; It has paved the way for many new services such as customer service and online shopping opportunities. Artificial intelligence is commonly defined as “the ability of a computer or a computer-controlled machine to perform tasks related to higher mental processes, such as reasoning, inferring meaning, generalizing, and learning from past experiences, which are generally assumed to be uniquely human characteristics.”[1] In this respect, artificial intelligence can also be defined as the thought initiative of a programmed computer.
The fact that artificial intelligence performs some actions similar to human actions necessitates considering its legal nature. So much so that, within the framework of the views discussed below, if we accept that artificial intelligence has legal personality, its legal and criminal liability will be in question. In this regard, firstly, the views that reject the legal personality of artificial intelligence and the views that accept the legal personality of artificial intelligence will be examined, and then the view of legal personality in terms of Turkish law will be evaluated.
Opinion Rejecting the Legal Personality of Artificial Intelligence
According to the proponents of this view, artificial intelligence is one of the goods produced by humans. Therefore, it is necessary to accept artificial intelligence as a commodity, and as Locke stated, people have the right to own what they produce. Therefore, individuals will have ownership of artificial intelligence. According to some views that go further, artificial intelligence should be considered a slave. The view that advocates accepting artificial intelligence as a slave because it can never have the qualifications to be human is criticized for ignoring the anti-slavery struggle and aiming to revive slavery.
Opinions Defending the Legal Personality of Artificial Intelligence
• The Opinion Accepting Artificial Intelligence as a Legal Entity
According to this view, which argues that artificial intelligence can never be considered a real person because it has a cognitive structure, not legally recognizing artificial intelligence would mean turning a deaf ear to technological changes. For this reason, artificial intelligence should be given legal personality, just like companies have.
• Electronic Personality Vision
In the European Parliament’s report dated January 27, 2017, a series of suggestions and recommendations were published in terms of giving personality to artificial intelligence. Perhaps the most striking suggestion here is the idea of granting a new type of electronic personality, other than real persons and legal entities.[2] The report in question is also the first official document regulating the granting of personality to artificial intelligence. Rather than being a commodity, artificial intelligence is an entity that can have rights and incur obligations. However, given the current situation, it does not seem possible to accept artificial intelligence as a real person. Therefore, considering the sui generis feature of artificial intelligence, the proposal to define it as an electronic person seems appropriate. In addition, the report foresees the registration of each artificial intelligence in the official registry and liability for compensation. In this context, if there is a causal link between the act of artificial intelligence and the damage, the liability of artificial intelligence will come to the fore.
•View of Non-Human Personality
According to this view, since artificial intelligence has some human-specific abilities, it is not possible to accept it as a legal person. However, since artificial intelligence is not human, it is not possible to accept it as a real person. Therefore, a new legal status is needed. For this reason, it is possible to give artificial intelligence a legal status with the new concept of non-human person.
Concept of Legal Personality in Turkish Law
There is no legal regulation regarding the legal nature of artificial intelligence in Turkish Law. The main reasons for this are the Turkish Legislator’s more conservative attitude towards new developments in the technological field, as well as the relatively low number of advanced technology studies in the country. However, in a world that is increasingly integrated with globalization, legal problems that arise with the development of technology necessitate a search for a solution.
Although there is no legal regulation regarding artificial intelligence in Turkish Law, it is necessary to examine whether the legal status of artificial intelligence can be determined through existing legal norms. In this context, the issue of whether artificial intelligence has legal personality will be examined.
In Turkish Law, a person is defined as a rightful entity. The legal system essentially accepts humans, who are natural beings, as rights holders. In accordance with Turkish Civil Code Article 8;
“Every human being has the capacity to have rights. Accordingly, all people are equal in having rights and obligations within the boundaries of the legal order.”
Articles 9 and 10 of the Turkish Civil Code regulate that a person who has the capacity to act can acquire rights and incur obligations through his own actions. As can be seen, the concept of person in law refers to entities that can have rights and obligations. Being human is not a condition of having legal personality. Due to social requirements, the Turkish Civil Code regulates groups of individuals and communities of property as legal entities.[3] Therefore, the Law has limited the concept of person to real person and legal person, and it is not possible for an entity that does not fall into both categories to be legally accepted as a person. In this context, in the light of the existing provisions, it is clear that artificial intelligence does not have legal personality in Turkish law.
In other words, in Turkish Law, the final decision on whether to grant personality to an entity is made by the legislator. Therefore, it is not possible for Turkish courts to recognize personality of an artificial intelligence entity in the absence of a legal provision in any dispute.[4] A legal regulation is definitely required in this regard.
Conclusion;
In the information age, instead of an understanding that ignores the developments regarding artificial intelligence, it is essential to adopt a position that does not refrain from defining it and making legal regulations on this subject. Our opinion is that artificial intelligence should be accepted as an entity with legal personality. In this way, it will be possible for artificial intelligence to incur debt as well as having rights. In other words, in this case, artificial intelligence will have legal and criminal liability.
When the aforementioned views are evaluated, responding to new situations with new concepts is important for the development of law. For this reason, the concept of electronic personality expressed in the relevant report of the European Parliament is a convenient concept to define artificial intelligence, which is a new phenomenon, with its unique characteristics. However, since artificial intelligence is a relatively new development, this concept by definition needs to be developed to respond to new situations that may arise. Moreover, considering that states have not yet taken steps to recognize and develop this concept in their domestic legal regulations, it is possible to say that discussions regarding the legal character of artificial intelligence will continue.
[1] INCE, Ş., ŞIMŞEK, M. Z., & KAYNARCA, F. (2019). YAPAY ZEKÂ VE ROBOTLARIN HUKUKI SORUMLULUĞUNUN TÜRK YASAL MEVZUATI ÇERÇEVESINDE INCELENMESI. GSI ARTICLETTER, 28.
[2] KILIÇARSLAN, S. K. (2019). YAPAY ZEKANIN HUKUKİ STATÜSÜ VE HUKUKİ KİŞİLİĞİ ÜZERİNE TARTIŞMALAR. Yıldırım Beyazıt Hukuk Dergisi, (2), 363-389.
[3] Oğuzman, Seliçi, Oktay-Özdemir, Kişiler Hukuku, Filiz Kitabevi, 2018, s.2
[4] KASAP, A. (2022). Güncel Gelişmeler Işığında Türk Hukukunda Yapay Zekâ Varlıkları ve Hukuki Kişilik. Türk-Alman Üniversitesi Hukuk Fakültesi Dergisi, 4(2), 485-556.