Today, history repeats itself in the Artificial Intelligence Revolution, where algorithms replace cognitive labor. When a self-learning autonomous vehicle runs over a pedestrian, when an AI-supported HR bot unjustly filters out female candidates, or when a medical AI makes a fatal misdiagnosis; will the software developer's defense of "There was no error in my code; the algorithm reached this judgment on its own via millions of data points" be valid? As traditional law's quest for "fault" collapses before a "Black Box" of billions of parameters, the most burning question arises: Is an algorithmic error legally considered strict (hazard) liability?
In this massive article, we deeply analyze this existential crisis shaking the pillars of obligations and tort law under the headings of Background, Legal Frameworks, Implications, and Conclusions, centering on the Fault vs. Strict Liability distinction, the US "Product vs. Service" dilemma, the European Union's recent directives, and Article 71 of the Turkish Code of Obligations (TBK).
1. Background: The Foundations of Liability Law and the AI Paradox
For centuries, legal philosophy has sought a "faulty human will" for the compensation of damages. To pay for someone's damage, you must have created that damage intentionally or through negligence (carelessness). However, the nature of AI (especially deep learning models) breaks this equation.
1.1. The Collapse of Fault-Based Liability
In traditional tort law, the rule is "Fault-based Liability." The plaintiff (victim) must prove that the defendant was at fault. But when an algorithm makes a mistake, there might not be a classical coding (if-then-else) error involved. The system may have produced an unpredictable (emergent) result based on statistical probabilities within the provided dataset.
It is mathematically and practically impossible for an ordinary victimized citizen to prove in court (Burden of Proof) that there was a "design negligence" in a secret, closed-source model with 1.7 trillion parameters owned by a company like Google or OpenAI. If the law continues to search solely for "fault," AI giants will never pay compensation for the damages they cause.
1.2. "Strict (Hazard) Liability" as the Way Out
To prevent this injustice, the law resorts to the doctrine of "Strict Liability" or "Hazard Liability." Operators of nuclear power plants, explosives factories, or motor vehicles are held liable for resulting damages even if they are not at fault, simply because their activities inherently harbor high risks regardless of how many precautions taking. The most heated debate in the legal world today is whether "self-learning, high-risk autonomous systems" can be categorized under these hazardous activities.
2. Legal Axes: Is Software a "Product" or a "Service"?
For an algorithm's error to be subject to Strict Liability, it must first be legally defined.
2.1. The US Approach: The Product Liability Dilemma
Product Liability laws in the US are very strong; if a defective product harms a consumer, the manufacturer is strictly liable. However, in decades of US jurisprudence (Restatement of Torts), "software" or "information" has generally been considered a "service" rather than a physical "product" (chattel). If you crash because of incorrect information in a map book, you cannot sue the publisher for strict liability.
But today, an algorithm managing a pacemaker or the autopilot software of an autonomous Tesla is not merely "information"; it is an actor directly intervening in the physical world. For this reason, US courts have begun to classify algorithms integrated with physical hardware as "products," bringing them under strict liability, while keeping algorithms running solely in the cloud (like ChatGPT) in a gray area.
2.2. The European Union: Updating the Product Liability Directive (PLD)
As the world's most proactive technology regulator, the European Union took a historic step in 2024 by updating its 1985 Product Liability Directive (PLD). With this update, "software and AI systems" were explicitly defined as "products."
Furthermore, through the draft AI Liability Directive (AILD), the EU is introducing a "Presumption of Causality." If a high-risk AI (e.g., a medical diagnostic system or credit scoring algorithm) causes damage, the court operates on the assumption that "The damage originated from the complex nature of the AI." It shifts the burden of proving otherwise (i.e., proving the AI was flawless) onto the tech company. This effectively creates a legal ground very close to strict liability.
The Situation in Turkey: TBK Article 71 (Hazard Liability)
Article 71 of the Turkish Code of Obligations (TBK) states: "If damage arises from the activity of an enterprise that poses a significant hazard, the owner of the enterprise and, if any, the operator are jointly liable for this damage." For now, Turkish Supreme Court jurisprudence has not defined AI as a "significantly hazardous activity." However, as autonomous vehicles or industrial AI robots become widespread, the prevailing view in Turkish doctrine is that high-risk algorithms should be directly brought into the "Hazard Liability" (Strict Liability) framework under TBK 71.
Legal Liability Spectrum: AI Systems
3. Implications: The Software Industry and Innovation
Classifying algorithmic errors as "Strict Liability" will have massive economic, not just legal, impacts:
- Risk of Extinction for Start-ups: Google or Microsoft can pay a $100 million strict liability lawsuit over an algorithm error. But a medical imaging AI company founded by three recent university graduates would go bankrupt from a single compensation lawsuit, even without fault. This could lead to only massive giants surviving in the market.
- The Open Source Dead End: If free, public-benefit open-source AI developers (like Hugging Face, Mistral models) are held "strictly liable" for damages caused by third parties downloading and integrating their codes into hardware, the open-source ecosystem will completely collapse. This is why regulatory exemptions for open-source code are globally debated.
- Defensive Engineering: Just as doctors run unnecessary tests out of fear of litigation (defensive medicine), software developers will intentionally restrict the capacities of AI systems to avoid legal liability, depriving humanity of monumental technological leaps.
4. Conclusions: How Will the Law Reconcile with the Machine?
Ultimately, treating the errors of high-risk algorithms (autonomous weapons, driverless cars, surgical robots) under "Strict Liability" is an inevitable necessity of modern law. Otherwise, companies hiding behind billions of parameters in black boxes will never be held accountable.
However, the bill for this liability must not stifle innovation. What Turkey and the world must do is create a centralized and mandatory "Algorithm Damage Compensation Pool," much like traffic or earthquake insurance. A citizen harmed by AI should be compensated instantly from this fund without waiting for lengthy court cases; thus, citizens won't struggle to prove fault, and tech companies will be protected by a predictable insurance premium.
Expert Opinion: Burhan Doğuş Ayparlar
Attempting to squeeze the damages produced by artificial intelligence into the traditional framework of 'Product Liability' is proof of the law's conceptual helplessness in the face of technology. A defectively manufactured microwave oven is static; however, an algorithm that continuously pulls data from the internet, updates its own parameters, and "learns" is not a static product but acts as a dynamic 'Agent.'
The error of a high-risk algorithm must indisputably be evaluated under 'Strict Liability' (Hazard Liability). Why? Because companies releasing these algorithms knowingly take on that risk of "unpredictability" and reap massive profits. According to the universal legal principle 'Commodum eius esse debet cuius periculum est' (He who enjoys the benefit must bear the burden), the cost of the statistical error of an algorithmic system must be placed not on the innocent citizen who is unaware of it, but on the tech giant that launched the system.
However, there is a critical need for an update here regarding Turkish Law (TBK 71). Our traditional hazard liability focuses on physical damages (explosions, poisoning). Yet an AI algorithm creates 'digital, economic, and psychological' hazards by unjustly denying employment, lowering a credit score, or destroying reputations via deepfakes. It is imperative that Turkey urgently invents a brand new legal concept under the name of "Digital Hazard Liability", supports it with mandatory insurance mechanisms, and shifts the burden of proof entirely onto the shoulders of the AI provider. Otherwise, justice will melt away inside the black boxes.
