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CRIMINAL LIABILITY OF ARTIFICIAL INTELLIGENCE

ABSTRACT

The development of artificial intelligence (AI) has raised a number of legal questions, including the question of whether AI can be held criminally liable. This blog will explore the issue of criminal liability for AI, examining the different legal theories that have been proposed and the challenges that would need to be overcome in order to hold AI criminally liable. The blog will also discuss the implications of holding AI criminally liable, both for the development of AI and for the criminal justice system.


KEYWORDS: Artificial Intelligence, Criminal Liability, Challenges, Implications


INTRODUCTION

As technology continues to intertwine with our daily lives and activities, the potential of technology being used for criminal purposes also increases. And in this blog, I shall be discussing the Criminal liability of technology in Nigeria with special regard to Artificial Intelligence.

The Nigerian Law, however, does not provide any guidance regarding criminal liability of AI-based systems but the Constitution, for example, does provide some guidelines for criminal responsibility for machines that do not act intentionally, but cause criminal damage or loss of life. This could provide some guidance for the Judiciary when considering the criminal liability of AI in Nigeria.


DEFINITION OF ACTUS REUS AND MENS REA

Actus Reus is the physical act of committing a crime. It is also an act by the defendant that can be proved through the use of evidence. While Mens Rea refers to the mental element of a crime or a guilty mind which is used to describe a type of fault or intention required for a person to be found criminally liable for an act committed.


CRIMINAL LIABILITY OF ARTIFICIAL INTELLIGENCE IN NIGERIA

Since Nigerian Law has not yet developed a comprehensive test for determining Criminal liability, The Court has developed a legal framework for determining criminal liability in Nigeria which is based on the principles of Mens Rea (INTENT) and Actus Reus (ACTION). They are Latin legal terms that refer to the main aspects of crime.

Under Nigerian Law, Criminal liability can only be attributed to a Natural person or a legal person such as a corporation or an organization. In regards to AI, when involved in a criminal act, the issue becomes

"Whether an AI system can be considered a Legal person or an agent of a Legal person for the purpose of Criminal Liability"

One basic principle is that the elements of Actus Reus and Mens Rea should both be present for a court to find the AI liable for a crime i.e., an AI can be found liable for a crime only if it voluntarily committed an act that was in breach of a criminal law, with an intent to commit the crime.


THE RELEVANCE OF ACTUS REUS TO ARTIFICIAL INTELLIGENCE IN NIGERIA

In the context of AI technology, actus reus may refer to a malicious “act of omission”, such as the failure to act, that may result in criminal liability.

This liability is primarily aimed at the individual or organization responsible for the design and implementation of AI technology. In Nigeria, for example, the Data Protection Act of 2019 provides guidelines for the regulation of AI technology. The Act provides that companies will be held liable for any data misuse or manipulation that results from their product. This could include use cases such as facial recognition technology being used to construct a profile on an individual, or AI being used to target individuals for exploitation.

It is also important to note the implications of AI on actus reus. In most cases, the entity being prosecuted for a crime is the individual, not the technology. AI is only capable of creating a derivation of the actus reus from its initial data, but ultimately, it is the individual who chooses to act in a certain way. For this reason, the consequences of an actus reus must always be weighed against the responsibility of the individual involved. AI is only capable of providing accurate results according to the data that it is given. It is impossible for AI to understand the weight of the implications of an act, because this intelligence is not provided by the data. It is important to remember that the concept of actus reus remains firmly centred on the individual. AI is only able to carry out the instructions given to it. Ultimately the individual involved must accept responsibility for the actus reus that is performed in their name.


THE RELEVANCE OF MENS REA TO ARTIFICIAL INTELLIGENCE IN NIGERIA

The concept of mens rea means “guilty mind,” and is used to describe a type of fault or intention required for a person to be found criminally liable for an act committed. Recently, the relevance of mens rea has been brought into question with respect to the rise of artificial intelligence (AI). AI is increasingly being utilized to make decisions in business and legal processing, for example in the finance, healthcare, and law enforcement industries. But when an AI is responsible for criminal acts, it is difficult to determine whether or not the AI should be held accountable.

To address this, the Government enacted the Robotics and Autonomous Systems Regulation Act in 2020, which stipulates that where AI is to be used as a tool in a legal context, the standard of mens rea must be applied. This means that any AI-driven decision-making process has to consider whether or not the actions of the AI were taken with the knowledge that harm or a crime could have been committed.

Therefore, the standards for attributing criminal liability to an AI-run machine should remain the same as for a human. The mens rea requirement should be one of the factors taken into consideration when it comes to the question of addressing liability for a crime in Nigeria. This ensures that criminals (either human or artificial intelligence) are viewed as having done so with a knowledge of the potential consequences.

One of the main challenges with applying mens rea to AI is that AI does not necessarily have an understanding of intent, as it is based on mathematical algorithms and data instead of morality or empathy. Although, it is still possible to label an AI-conducted act as illegal, depending on the context and circumstances of the act itself. For example, if an AI was used to identify potential criminals based on criminal data, then the developers of that AI may be held responsible if it disproportionately targets certain marginalized groups. Similarly, if an AI-driven autonomous vehicle results in a serious injury or death, then the responsible party would be the one who programmed the vehicle and not the vehicle itself.


CONCLUSION

It is clear that AI-based systems are going to play an increasingly important role in our daily lives. For these reasons, it is important that Nigerian lawmakers and judges examine the potential for criminal liability of AI systems. The legal landscape in Nigeria is developing rapidly, and proper procedures and guidelines regarding criminal responsibility must be established to ensure that citizens are protected from any potential harm caused by AI-based systems.

There are a number of different legal theories that have been proposed for holding AI criminally liable. One theory is that AI can be held liable for crimes that are committed as a result of its programming. Another theory is that AI can be held liable for crimes that are committed as a result of its actions, even if those actions were not programmed.

There are a number of challenges that would need to be overcome in order to hold AI criminally liable. One challenge is that it is difficult to determine whether AI has the mens rea to commit a crime. Another challenge is that it is difficult to punish AI, as AI does not have the same needs as humans.

The implications of holding AI criminally liable are significant. If AI is held criminally liable, it could have a chilling effect on the development of AI. Additionally, it could be difficult to determine who should be held liable for the actions of AI, as AI is often developed and used by multiple people.

The issue of criminal liability for AI is complex and there is no easy answer. However, it is an important issue that needs to be considered as AI continues to develop.


AUTHOR – Faramade Gloria Olu-Falade


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