Vehicle telematics represent the next stage of evolution in the operation of road vehicles and road networks but there are a number of very real barriers in the path of this development. First of all, the “Big Brother” aspect, with the risk of abuse of vehicle tracking information, needs to be resolved. Secondly, there will need to be greater debate and eventual resolution of the question of liability where systems (particularly with emergency warning systems and intelligent vehicle technologies) fail.
Vehicle telematics is the use of positioning technologies (such as Global Positioning Systems (GPS)) in combination with IT and mobile communications technology in road vehicles. The technologies now enable a broad variety of applications in vehicle tracking, satellite navigation, road pricing, emergency warning systems, remote diagnostics, intelligent vehicle technologies and pay-as-you-go motor insurance.
Each of these applications poses its own legal issues – the main ones of which we explore below.
Liability for Telematics Failures
In general terms, introducing the vehicle as a device within a communications network introduces more possible points of failure. This raises questions such as who monitors the network to ensure it is operational and what happens if the network fails? Does a driver who switches on his emergency warning system and does not get an emergency warning because of an equipment or network failure have any sort of legal case in the event of an accident? A driver will remain primarily liable to other road users for accidents and damage he causes but could such a driver have a case for recompense from the vehicle manufacturer (rather than having to claim on his insurance)? Furthermore, could failure of a telematics system provide any sort of defence in criminal proceedings – for example, for reckless driving?
The successful use of vehicle telematics failure as a defence in criminal proceedings seems unlikely but it can be expected to be tested at some point. In relation to the liability of vehicle manufacturers, there is little legal precedent in the UK but manufacturers and retailers will need to be careful in the wording in their terms and conditions and drivers’ manuals. It may prove that, because the telematics systems demonstrably work to reduce accidents, that insurers will take on the risk of liability for telematics failures but a blanket exclusion in a manufacturer’s terms for all liability, including death and personal injury, is not likely to be reviewed with sympathy by a court. There is likely to be a stronger defence in any case involving clear negligence on the part of the driver.
It seems unlikely that there will be legislation on this liability issue so we can expect the law to emerge through the development of cases at common law.
Developing the Telematics Infrastructure
Wireless Vehicle Safety Communication uses on-board electronics sub-systems to exchange safety information over short range radio links – often involving temporary ad hoc wireless local area networks. Wireless units are installed in vehicles and also in fixed positions, such as traffic lights and roadside emergency telephone points. To avoid a proliferation of roadside wireless units (particularly given fears – whether well-founded or not – about the health impacts of such units) operators will need to agree a co-ordinated approach to deployment based on agreed interoperability standards and agreements on who pays for and maintains the infrastructure.
Vehicle tracking uses GPS to monitor the location, movements, status and behaviour of a vehicle or fleet of vehicles. It can be used by fleet managers, in road pricing schemes or for pay-as-you-go insurance. It can also be employed to provide passengers with arrival information on bus routes.
The biggest barriers to the deployment of telematics technologies exist in this area where the public are increasingly fearful of a surveillance society and the encroachment of Big Brother. For instance, a delivery driver who has personal use of a fleet vehicle outside of business hours would probably feel it an invasion of his privacy for his employer to track when and where he used that vehicle outside of business hours. This adds a human rights angle as well as a data protection angle to the debate around the use of telematics systems for vehicle tracking (the Employment Practices Code produced by the Information Commissioner’s Office states that any system should in most circumstances include a ‘privacy button’ that can be used when the vehicle is being used outside of business hours). If a driver’s vehicle use is captured for one purpose can it be used for another purpose (e.g. passed to enforcement agencies investigating traffic offences)? Undoubtedly, the police will want access to this information (even if not for traffic offences then for anti-terrorism investigations) but the approaches of data controllers to the release of data have been inconsistent (mainly because of misunderstanding or misapplication of Data Protection legislation). A code of practice is needed urgently to cover vehicle tracking and automatic number plate recognition (ANPR) operators agreed between the operators (not always employers), police, Information Commissioner and the system manufacturers.
A vehicle’s built-in systems can now identify a mechanical or electronic problem and use telematics to communicate this information to the vehicle manufacturer’s service organisation and send an email to the vehicle’s owner. This provides opportunities for more sophisticated servicing offerings but would require a more sophisticated service agreement model. What if a vehicle owner objects to a problem diagnosis requiring an expensive repair? Would this invalidate their warranty on the vehicle? Does this place too much control of the after-sales market in the hands of the vehicle manufacturer – creating a competition law issue?
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