If a software program which purports to be an early form of A.I. malfunctions, who is liable?
Technology (second edition)
There are no specific rules as regards A.I. functionality under Swiss law. From a civil law perspective, technology-neutral general Swiss liability law is applied, with the main sources of law being the Code of Obligations as regards fault-based and contractual liability as well as the Federal Road Traffic Act of 19 December 1958, as amended (RTA), and the Federal Law on Product Liability of 18 June1993, as amended (PLA), which address strict liability. The decisive factor for any liability is to whom the unlawful conduct is attributable. Only individuals or legal entities may be liable while a liability for a machine or A.I. functionality is excluded, meaning that the liability for the operation of autonomous systems (including A.I. functionalities) must always be based on the act or omission of a person, irrespective of an integrated software’s capability to amend the underlying software code. A similar logic applies from a criminal law perspective: Only individuals (and not machines) can be primarily criminally liable pursuant to the Swiss Criminal Code of 21 December 1937, as amended (SCC), meaning that an individual must have caused (by act or omission) an unlawful offense (e.g. a bodily injury or damage to an object) wilfully or negligently. A subsidiary liability for legal entities may apply if it is not possible to attribute an act or omission to an individual due to the inadequate organisation of such legal entity. Sanctions of up to CHF 5 mio. may be imposed for a felony or misdemeanour attributed to such legal entity.
Under the current law, AI developers and operators may be liable for the early form of AI malfunctions. We consider the nature of the early form of AI is like a machine with more human control rather than that with little human control. When AI malfunctions, the AI operator may be liable in the first place and the AI user may seek liquidated damages and other remedies based on the user contract; while the AI developer may be liable eventually if the AI developer breaches the AI development contract, resulting in the AI malfunction. According to the Consumer Protection Law, when the AI user’s legitimate interests are infringed due to AI’s malfunction, the AI user may claim compensation from the AI operator and the AI operator may then claim compensation from the AI developer if the developer should be blamed for the malfunction. Where the AI user suffers from personal injuries or property damages due to the defect of AI, in accordance with the Tort Liability Law, the user may seek damages from either the AI operator or the developer in the first place, and the AI operator or the developer may be liable entirely or proportionally according to their faults in the AI malfunction.