Autonomous vehicles: cross jurisdictional regulatory perspectives update
In November 2021, both Whitby and Toronto suspended their autonomous bus pilots after Whitby’s “Ollie” vehicle was involved in an accident. Photo: Colin Williamson
Borden Ladner Gervais LLP – Greg Rafter, Marin Leci, Yi Lui
Since the release of our regulatory perspectives article in 2021, there have been a variety of regulatory and policy developments around the world regarding the use of autonomous vehicles (AV or AVs).
In addition to highlighting recent developments for the operation of AVs in Japan, the U.K., the European Union, the U.S., and China, jurisdictions of South America, Australia, New Zealand and India are poised to make significant strides in developing regulatory landscapes conducive to the development of autonomous vehicles.
Our December 2021 article outlined current Canadian trends and Canadian considerations for the AV regulatory environment.
Notable updates for 2022 include the release of the JD Power’s 2022 Canada Mobility Confidence Index Study.36 This whitepaper points to significant knowledge gaps for the Canadian populace on the topic of AVs including a finding that “67 per cent of consumers in Canada possess inaccurate knowledge of fully automated, self-driving vehicles.”
For example, “…more than half (59%) of respondents classify driver-assist technologies that are available today as being fully automated, self-driving technologies…” Moreover, 17 per cent of consumers surveyed believed AVs were currently available for purchase in Canada. Coupled with this general knowledge gap is a lack of consumer readiness to ride in a fully automated and self-driving vehicle. This finding is particularly prevalent with generation X, boomers, and pre-boomers as these sample groups demonstrated below average consumer readiness for the Canadian market. Despite low readiness, the data suggest that Canadians are receptive to training and are willing to seek additional information.
Other notable updates since 2021 include Bill C-27 receiving its first reading on June 16, 2022 and gradual improvements to Canada’s growing 5G network. Bill C-27, titled “An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts” aims to update private sector privacy law in Canada and will have a lasting influence on how AVs are regulated in Canada particularly in regards to data collection and privacy concerns. In addition, improvements to Canada’s 5G network could act as a catalyst to allowing for the testing and eventual deployment of high level AVs on public roads.
We outline Bill C-27 in greater detail in a previous article.
The regulatory environment for the testing of AVs in the U.S. has largely been handled at the state level though the Federal Government seems primed to get involved as well. Most states have implemented permitting schemes and regulations for testing autonomous vehicles. Notably, on March 16, 2022, U.S. Transportation Secretary Pete Buttigieg stated that “federal policy on autonomous vehicles will undergo ‘meaningful’ developments in the coming years.”11
In addition to Secretary Buttigieg’s statements, American law makers are also keen to see federal guidance on AVs. On April 27, 2022, a group of 12 senators wrote a letter to the United States Transportation Secretary urging the development of federal policies.12 The letter states that “[a]utonomous vehicles hold great promise to deliver significant benefits for all Americans—but only if the federal government puts the necessary policies in place to achieve these benefits.”13
On June 17, 2022, we published an article that outlined the themes of the Feb. 2 United States Congress House Committee hearing on Transportation & Infrastructure. The hearing titled “The Road Ahead for Automated Vehicles” was held to investigate the impact of AV deployment on mobility, infrastructure, safety, workforce, and other economic and societal implications or benefits. The safety of AVs was one of the most important concerns to be addressed at the Hearing.
In June of 2022, the U.S. National Highway Traffic Safety Administration released the initial round of data it had collected on autonomous vehicle accidents. The data collection was ordered by the National Highway Traffic Safety Administration in June 2021 and required identified manufacturers and operators to report certain crashes involving vehicles equipped with SAE Level 2 -5 Advanced Driver Assistance Systems (ADAS).14 Based on the data, from July 2021 to May 15, 2022, 25 reporting entities have submitted incident reports for 130 crashes involving levels 3-5 ADS-equipped vehicles, and as of May 15, 2022, 12 reporting entities have submitted incident reports for 392 Level 2 ADAS-equipped vehicle crashes, 367 of which occurred from July 2021 to May 15, 2022. The vast majority of these accidents took place in California, including 90 crashes for levels 3-5 and 125 crashes for Level 2.
On March 10, 2022, the U.S. National Highway Traffic Safety Administration issued the final rules amending the occupant protection Federal Motor Vehicle Safety Standards (FMVSSs) to account for future vehicles that do not have the traditional manual controls.15
At the state level, California, Nevada and Florida are at the forefront of AV legislation development.16 Nevada was the first state in the United States to pass an autonomous vehicle law in 2011, allowing AVs to be tested in Nevada with the condition that the vehicle must be registered, insured and have a certificate of compliance issued by the state Department of Motor Vehicles. In 2022, free self-driving autonomous taxis now operate in downtown Las Vegas.17
Florida was the first state to allow any individual with a valid driver’s license to operate an AV on public roads. In California, the Contra Costa Transportation Authority authorized testing of the first fully autonomous vehicle not equipped with a steering wheel, brake pedal or accelerator on certain public roads.
Some U.S. States have developed testing schemes for other types of autonomous vehicles, including commercial and ride-sharing services. Texas, Arizona, New Mexico, Louisiana, Nevada and Colorado have allowed testing of autonomous trucks.18
On June 27, 2022, a group of 34 autonomous vehicle developers, including Waymo, Aurora, UPS and Luminar, signed an open letter to the Governor of the State of California asking for a safe and thoughtful regulatory framework to permit autonomous trucks in the state of California.19 Most recently, the State of Michigan passed innovative, first of its kind, legislation that designates certain segments of stat roads as “automated vehicle roadways”.20 In addition to incentivizing new AV manufacturers and traditional OEMS to develop products in Michigan, this novel approach could accelerate AV innovation by providing significant portions of roadway for exclusive AV use, creating positive conditions conducive to materially improving level 4 and level 5 autonomy.
The U.S. remains an excellent resource for examples on innovative approaches to harnessing the benefits of AVs while establishing regulations that foster innovation and promote safety. Given the clear signals from both American law makers and the current administration, the Federal Government appears to be arming itself with significant amounts of safety data so that it may begin to meaningfully weigh into AV regulation. It is clear that significant change is coming.
On April 27, 2022, a new amendment to Japan’s Road Traffic Act was published in the Official Gazette.1 This amendment introduced a permission system for Level 4 AVs and loosened regulations for riders of electric kick scooters.
Currently, Japan’s Road Traffic Act permits Level 3 driving, in which a self-driving system can operate a vehicle most of the time, but the human driver must be ready to take necessary actions in case of an emergency. Under the new amendment, Level 4 automated transportation services are possible though only intended for use under remote monitoring in depopulated areas. These rules will take effect within one year of April 27, 2022.
This is a significant development for AVs generally and arguably makes Japan an effective model for other nations looking to develop regulations to permit Level 4 AV deployment onto public streets.
In April of 2021, the U.K. launched its consultation on The Highway Code with the results of this consultation recently released on April 20, 2022.2 The proposal sought comments on the adoption of an entirely new section that clearly lists the criteria for operation of an AV and the responsibilities of a driver who uses automated systems while driving.
The consultation saw a majority of respondents seek clarity on driver responsibilities, including:
…requests for clarity on activities that may distract the driver, for example, whether the use of mobile phones or tablets will be allowed. Several [respondents] also asked for clarity on whether the driver would need to remain in the driving seat and keep the seat in an upright position.3
Driver responsibilities will continue to be a highly contentious topic with far-reaching effects on regulation, insurance, automotive manufacturers and drivers. The U.K. government draws a bright line between “self-driving vehicles” and “driver assisted technologies” (like cruise control and lane-keeping assistance) and attempts to minimize any confusion between the two. Self-driving vehicles are required to be insured under a self-driving categorization and the Secretary of State for Transport is the entity that is responsibly for deeming and then publishing a list of vehicles that qualify as “self-driving”. Currently, the Secretary of State for Transport has not listed any vehicles as self-driving.4
On January 26, 2022, the Law Commission for England and Wales and the Scottish Law Commission released its joint report with recommendations for a new legal framework on regulating AVs in the U.K. (the AV Report).5
The AV Report seeks to further differentiate “self-driving” and driver assisted technologies by proposing a new system of accountability for self-driving vehicles. Notably, once a vehicle is authorised as having “self-driving” features and a self-driving feature is engaged:
- The person in the driving seat will no longer be a driver but will become a “user-in-charge”. They will have immunity from a wide range of offences related to the way the vehicle drives.
- The vehicle will be backed by an Authorised Self-Driving Entity (or ASDE). If the automatic systems feature causes the vehicle to drive in a way which would be criminal if performed by a human driver, this would be dealt with as a regulatory matter.
- Some features may be authorised for use without a user-in-charge. They refer to these as “no user-in-charge” (NUIC) features. Here, any occupants of the vehicle will simply be passengers.
- Victims who suffer injury or damage will not need to prove that anyone was at fault. Instead, the insurer will compensate the victim directly.6
As a result of the introduction of new legal actors (the “user-in-charge” and ASDE) and the corresponding tectonic shift in liability and regulatory oversight, the AV Report recommends a test to be conducted by an authorization authority. This test would ensure that self-driving vehicles would meet published safety standards and technical standards. Another key finding of the AV Report is the recommendation of the creation and adoption of a new Autonomous Vehicles Act.
Rather than amending or attaching AV related legislation to existing law, the AV Report appears to be a significant step forward in developing purpose built legislation designed to regulate AVs from a traffic, insurance, and criminal law perspective. The AV Report’s recommendations, specifically its recommendation to change the definition of driver, could create significant reverberations throughout the insurance landscape in Canada if Canadian regulators and legislators adopt a similar approach.
The European Union
A key metric for more advanced levels of AV autonomy is 5G availability. In May 2022, the European 5G Observatory released its quarterly report, which indicated that all EU countries have now launched commercial 5G services (at least partially) in each country.7 5G coverage reaches 64 per cent of the population in the EU.
The report further demonstrates that EU States are making progress, albeit slowly, on meeting goals for its 5G connected corridors initiatives, which will be integral to the eventual use of AVs on European roads.8
On July 6, 2022, EU Reg. 2019/2144 (the AV Regulation) took effect with a view to “significantly reduce deaths and serious injuries on European Union (EU) roads by introducing state-of-the-art safety technologies as standard vehicle equipment, and to enhance the competitiveness of EU car manufacturers on the global market by providing the first ever EU legal framework for automated and fully automated vehicles.”9
The regulation makes a distinction between “automated vehicle” and “fully automated vehicle” with the difference between the two terms being the expectation or requirement of driver intervention.10 Article 11 of the Regulation calls for the development of uniform procedures and technical specifications to be developed regarding a type-approval process meant to serve as a matrix to classify AVs as automated or fully automated vehicles.
The implementation of the EU Regulation has lead to proposed draft changes to “EU Reg. 2018/585 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles.” The proposed changes, published for public consultation on March 22, 2022, specify the requirements for various vehicle classes to be registered including goods, vehicles, passenger vehicles and dual mode vehicles (equipped with both a fully automated and manual driving mode).
There has been extensive development in AV regulations in China since 2021.
The Ministry of Transport, the Ministry of Industry and Information Technology, and the Ministry of Public Security jointly promulgated into law the “Administrative Measures for Road Testing and Demonstration Application for autonomous vehicles” in July 2021. Since then, many of China’s provinces and cities have published their own regulations for road testing for AVs.21
On August 20, 2021, the Standardization Administration of China published China’s vehicle driving automation classification standard, “Taxonomy of Driving automation for vehicles”.22 Under this standard, (similar to SAE international standards) driving automation levels are clearly defined under six levels to create uniformity for car manufacturers. This standard was introduced to combat naming convention issues that have become a nuisance in the marketplace where model names used by car companies (“L2.5”, “quasi-L3” or “L2.9”), exaggerate assisted driving capabilities for marketing purposes while trying to avoid legal risks. 23 The new standard came into force on March 1, 2022.
On March 7, 2022, China’s Ministry of Industry and Information Technology (MIIT) issued the Guidelines for the Construction of the Internet of Vehicles Cybersecurity and Data Security Standard System. This guideline serves as a roadmap to address the cybersecurity and data security needs of China’s Internet of Vehicles network and strengthens the standards and technical requirements for AV industries.24
Shenzhen is a leader in AV law in China and it has become the first city in China to introduce an extensive regulatory framework for autonomous cars.25
On March 23, 2021, the Standing Committee of the Shenzhen Municipal People’s Congress issued the Draft for Comments of the Regulations of Shenzhen Special Economic Zone on the Administration of Intelligent and Connected Vehicles. This draft regulation was approved into law and came into force on August 1, 2022.26 This is the first extensive regulatory framework for autonomous and connected cars in China.27 This regulation explains how and where AVs can operate, and further outlines insurance requirements and liability considerations.28
Specifically, the regulations state that if an AV has a driver when an accident occurs, and the AV is responsible for the accident, the driver will be liable. However, if a fully autonomous vehicle causes damage when there is no driver inside the vehicle, the owner and controller of the vehicle shall be liable for compensation if the autonomous vehicle is responsible for the accident.
In 2017, Singapore introduced the Road Traffic (Autonomous Motor Vehicles) Rules to regulate AV trials.29 In Singapore, all AVs must undergo stringent safety assessments conducted at the Centre of Excellence for Testing and Research of AVs-NTU AV Test Centre, prior to operation on Singapore roadways.30
Generally speaking, under the requirements of the Road Traffic (Autonomous Motor Vehicles) Rules 2017, testing and uses of the autonomous vehicles are only allowed if the person or entity has specific authorization from the Land Transport Authority of Singapore.31 The authorization may include a specific geographical area where testing and use can occur. The person who obtains the authorization has the duty to maintain the AV in a state of good condition and make sure the vehicle is functioning properly at all times. The authorized person has a duty to report accidents to the authority. AVs are also subject to mandatory requirements to have comprehensive insurance coverage against third-party liability and property damage.32
In recent years, the number of trial areas, as well as the number of roads available for testing have been progressively expanding,33 and testing for autonomous buses and shuttles have become a more frequent occurrence on urban roadways.34
However, to date, Singapore has not released a strict timeline for the deployment of autonomous vehicles. On July 5, 2022, the Minister for Transport of Singapore stated that “[t]he timeline for the deployment of AVs in Singapore is dependent on the progress of AV technology in meeting safety standards and gaining public acceptance, within our local context.”35
Australia’s National Transport Commission (NTC) through its Automated Vehicle Program Approach outlines the framework for national transport reform on developing an end-to-end regulatory system to support the safe, commercial deployment of automated vehicles at all levels of automation.40
From a reform perspective, Australia aims to address a number of key elements, including vehicle trials and testing, determining liability, safety criteria, as well as heavy vehicle and insurance regulation. As a part of this framework, the National Transport Commission has deemed an “automated driving system entity” (ADES) to be legally in control of a vehicle when automated systems are operating.
Recently, the NTC released its discussion paper “On-road enforcement for automated vehicles” which will remain open for comment until September 2022. The discussion paper looks to develop a nationally consistent policy on enforcement when interacting with AVs.41
Unique problems are raised in the discussion paper, which seeks to determine how law enforcement might instruct, disable or otherwise communicate with an autonomous vehicle during the course of policing duties. Such interactions also raise additional data and privacy considerations such as how law enforcement might obtain information from cameras, sensors or other data. The discussion paper serves as a future-looking document that asks meaningful legal questions which may not be answered for years or even decades to come, including:
- To what extent can data collected from ADS be admitted to settle disputes or insurance claims?
- For offences picked up by a traffic camera, which data source, the camera or the ADS, can be relied on for prosecution?
- How much weight should be given to automated vehicle data, especially in instances where the vehicle evidence and camera or witness testimony may be contradictory?
- Given the novelty of the technology, there may be difficulties with finding people experienced enough with automated vehicles to access, evaluate or give witness testimony during the prosecution of a case.42
Australia appears to be a world-leader in the creation of a forward-looking regulatory environment for AVs. As the NTC continues to strive for a nationally consistent framework, it will be an important jurisdiction to follow closely both from a law-making and litigation perspective. Moreover, Australia’s legislative steps to date make it yet another jurisdiction that has begun the process of shifting liability from the individual behind the wheel to the system that is actually in control of the vehicle.
Unlike Canada and Australia, New Zealand does not have a federalist system that splits the responsibilities of law-making between various levels of government for AV regulation. This unitary law-making approach allows an exclusively national approach to regulation.
The second round of consultations closed on May 27, 2022 for New Zealand’s “Long-term Insights Briefing: The impact of automated vehicles operating on Aotearoa New Zealand roads.”43 The summary of submissions raises New Zealand specific questions that will likely be addressed in the final release of the report. These include questions regarding New Zealand’s unique driving environment and its impact on the safe operation of AVs, equity, and responding to rural and urban differences.
New Zealand’s autonomous work programme notes that “New Zealand legislation does not specifically require a driver to be present for a vehicle to be legally operated on a public road. However, most regulations and relevant international frameworks strongly imply the presence of a driver in the vehicle given that ‘automation’ was not a consideration at the time of drafting the legislation.”44 The Ministry of Transport further states that:
As well as the Land Transport Act 1998, there are other regulations that may be applicable to the operation of AVs. These include:
- the Accident Compensation Act, particularly section 35, which covers accidents and injuries, and
- the Privacy Act which safeguards the privacy of individuals, data storage and management, and other uses of personal information. The Privacy Act 1993 is currently under revision and is to be replaced by the Privacy Bill.45
The New Zealand Transport Agency publishes a detailed framework outlining the process to receive an AV testing permit.46 However, AVs that do not meet current Land Transport Rules can be exempted for testing in New Zealand making this jurisdiction a welcoming country for the testing and permitting of AVs.
South America has seen a growing interest in commercial and consumer use AVs. In January 2020, Chile’s Ministry of Transportation and Telecommunications and the Inter-American Development Bank launched Latin America’s first vehicle pilot project with the goal of improving transport in Chile and the Latin American and Caribbean region.47
While the January 2020 project marks a start for collaboration of public institutions, private companies and academia, South American countries have adopted AVs much earlier for use in the mining sector. Continued investment in autonomous commercial grade vehicles appears to have been spurned on by the COVID-19 pandemic and accelerated demands for more autonomous technology. Use of commercial autonomous technology continues to grow in countries such as Chile and Peru in order to minimize costs, enhance safety, and ensure productivity gains.48
South American markets may prove to be fertile testing grounds for AV fleets and commercial application of AV technology. Canadian jurisdictions with strong mining sectors (such as British Columbia) should consider monitoring South American legislative developments around the regulation of commercial-use AV technology.
Across these jurisdictions, a clear pattern has emerged, which appears focused on the growing importance of the legislative distinction between fully autonomous vehicles and assisted driving features. Legislation appears to be aimed at proactively reducing any ambiguity that may exist between a driver and an operator of fully self-driving AVs. In other words, clear efforts are being made to apportion liability at the various levels of self-driving technology. In addition, some jurisdictions have turned legislative resources toward grappling with a post-driver world where everyone, including the person sitting behind the wheel of an AV, is ultimately a passenger in a vehicle being controlled by a system rather than a driver.
As the global AV industry pushes towards increasing testing and use of Level 4 AVs across a number of jurisdictions, we expect that the implementation of legislation incorporating AVs into existing legislation or the creation of stand-alone AV legislation will also accelerate. We expect that significant disruption to traditional principles of liability apportionment, insurance legislation, and privacy regulations will occur as legislative bodies around the world work to balance the benefits of AV technology against its disruptive impacts.