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Automated Driving: Liability of the Software Producer and the Producer of the Automated Vehicle

Even though automated vehicles are expected to bring great safety benefits, accidents will still occur with automated vehicles. An automated vehicle could be equipped with self-learning software (reinforcement learning), which learns whilst driving. This software could make a ‘learning error’ and, for instance, not recognize worn-down lane markings as such. Is the producer of the automated vehicle liable for the damage caused by this ‘learning error’? And what if the damage is not caused by a ‘learning error’, but by a glitch in a software update, can the producer of the automated vehicle be held liable for the damage caused? And is such a software update a product? In this paper, the challenges posed by automated driving to the European Product Liability Directive will be discussed. The legal position of the software producer as well as the legal position of the producer of the automated vehicle are explored in order to find answers to the questions mentioned.