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How can we adapt our laws to new technology?

There were no bitcoins or artificial intelligence when our civil code was compiled. This could cause problems. Professor Tycho de Graaf is researching how laws can be adapted to new technology.

Our civil code dates back to the last century. Three requirements from that era often influence the rules that apply today: tangibility, paper and ink. Tangibility means you can hold something, and when contracts were recorded, this was done with ink on paper. This is a sticking point in the digital world. You cannot hold artificial intelligence and can now use an electronic signature.

One and the same

Suppose a bug causes your smart TV to explode and injure you or the online word processor you use destroys your digital diary: who can you hold liable? These questions cannot be answered in the same way, says Tycho de Graaf, Professor of Technology and Civil Law. ‘Who is responsible is determined, among other things, by the question: can I hold it? You can with a TV so the manufacturer is liable. But you can’t hold the online word processor, which makes it less easy to hold the manufacturer liable.’

‘If legislation lags behind, it no longer works as the lubricant of society’

In his inaugural lecture on 29 September, De Graaf will argue that things could be simpler. He thinks the proposed revised product liability directive presented by the European Commission last year is a good example of this. ‘It applies the same rules to software and hardware; it’s one and the same.’ Many other laws still pigeonhole things too much, he says. ‘It would be much easier if you just said: we have one common set of basic rules and will make an addition or exception for what is really different.’

New legislation is slow

That is easier said than done because making new rules takes time. The old product liability directive dates back to 1985. It was only last year that a new directive was proposed. 

Is it bad that legislation lags behind new technologies? ‘Yes’, says De Graaf. ‘It creates problems because then the legislation no longer works as the lubricant of society and does not protect people enough.’

Creative with rules

That does not mean that there are no rules at all until regulations have been adapted to new technology. ‘In the meantime, we have to apply the existing rules creatively’, says De Graaf. ‘We have to see if we can put something in a certain box after all, or restructure a box a bit. As far as artificial intelligence is concerned, I do that in the university’s SAILS project, for example, also with colleagues from other faculties. That is what I like about my field, to keep exploring how we can fit new technology into the existing legal system in such a way that both facilitates and protects it. And it is fantastic that a new chair has been created for this and that I get to hold it.’

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