Problems with the prospective connected autonomous vehicles regulation: Finding a fair balance versus the instinct for self-preservation

There would seem to be a potential regulatory problem with the crash algorithms for connected and autonomous vehicles that (normally) “kick in” should a crash be inevitable. Although the general regulatory considerations which have been put forward tend to seek a “fair balance” that would protect various users of the roads, a configuration which shielded other parties at the cost of the car user could be seen as posing an existential threat to the user by encroaching on his or her right to self-preservation. “Hacking the system” (i.e. modifying the configuration in order to obtain a more favourable outcome for the user) could therefore be understood as acting on one's instinct for self-preservation and – though illegal – could in certain situations turn out to be an action that is not punishable in law. The present article argues that in certain real post-crash situations, a person who has modified the code for his or her own benefit could be exonerated on the basis of existing legal provisions and thus go unpunished. This could create unforeseen flaws in the connected autonomous vehicles regulatory system.