As drones are now increasingly used in a number of sectors, including maritime, resources, law enforcement, healthcare, logistics, and humanitarian efforts, the legislation surrounding their use is constantly changing and evolving.

In conversation with Lawyers Weekly, Maurice Thompson, partner and founder of Clyde & Co’s Global Drones Group, said that this space will continue to evolve over the coming years and outlined a number of challenges for the sector.

“It is generally accepted that one of the key challenges facing regulators globally in fully realising the potential of drones is their successful integration into the non-segregated airspace without reducing existing capacity and while maintaining safety levels currently imposed and minimizing potential dangers to other aircraft, passengers, and other persons and property on the ground. Organisations such as the International Civil Aviation Organisation (ICAO) and the European Union Aviation Safety Agency (EASA) have vital roles to play in this regard and more broadly,” he explained.

“Regulatory intervention ideally needs to tread a path that does not stifle innovation and is sufficiently agile to facilitate technological development and to support the new applications.

“The development of a consistent regulatory and operational framework for drones must also consider design and product liability issues which in turn are closely connected to the development of drone-specific airworthiness standards, including mandated ‘fail-safe’ functions.”

In fact, drones are now in widespread use in mining, remote exploration works and repair, geological survey, agricultural land management, urban transport and delivery, aerial photography, media and more.

According to Mr Thompson, increasing recreational use continues to fuel market growth of drones globally, and their increasing use in areas like law enforcement, search and rescue and emergency relief is evolving very rapidly. 

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“While predictions for future growth vary, all reports predict continuing growth across the world. This is not surprising as drones have proved their worth in the commercial and industrial environments, helping businesses and organizations improve safety, collect fast and accurate data, and improve efficiency and profitability. Moreover, they are increasingly demonstrating their indispensable applications in law enforcement and in healthcare and humanitarian contexts. 

“The global health challenge that the COVID-19 pandemic has precipitated brings this growth phenomenon into very sharp focus. Similarly, in the delivery of emergency medical supplies in a crisis, where the main message is ‘stay at home’, or in harsh environments like warzones or during environmental disasters, drones can provide practical assistance in several ways, such as collecting samples for testing, delivering vaccines which require refrigeration in areas without such facilities and delivering food,” he added.

“It is increasingly clear that the use of drones in the transport of people and goods will be one of the key areas fuelling market growth of drones globally.  As the New South Wales government observes in its report Transport for NSW: Future Transport Strategy 2056, the next 40 years will see more technology-led transformation than the past two centuries did, with rapid innovation bringing increased automation, including the use of drones to support future transport in areas like rapid point-to-point services that could transform emergency services and deliveries.”

Whilst “job creation, job change, job destruction, and job shift are all being facilitated by drones”, there are a number of critical challenges to be aware of in the sector.

Clyde & Co senior consultant Dr Tony Tarr said that “a comprehensive body of drone law does not yet exist.”

“The primary challenge faced by lawmakers both internationally and domestically in regulating drones is the rapid pace of development in drone technology and the diversity of drone use. For the most part, as previously discussed, regulatory emphasis has understandably focused on operational safety,” he said.

As a result, there are a number of areas within the drone law space that are likely to soon “undergo significant evolution”; privacy issues, drone technology, product liability and insurance.

“The use of drones raises a number of privacy issues in light of the extent and scope of data collection via drones. Drones have long been considered as ‘eyes in the sky’ with all but the most basic consumer models routinely equipped with some form of camera for still or video image capture,” he said.

More advanced surveillance technologies can combine a sophisticated camera drone’s high-quality audiovisual recording and storage capabilities with data analytics tools such as facial recognition software, gait analysis and other biometric assessment techniques to identify individuals for targeted observation,” Dr Tarr explained.

“The size and maneuverability of drones enables them to monitor individuals at a distance and to follow and track targets, potentially without the knowledge of the person that is subject to surveillance. As technologies develop and drones become ‘smarter’, the possibilities for data collection are almost limitless. While drone operators must abide by the terms of relevant aviation regulations, those rules must be considered in conjunction with prevailing privacy and data protection laws.”

In addition, the rate at which drone technology is developing is not leaving regulators much room to look at “specified design standards”, according to Dr Tarr.

“By the time these have been looked at, the technology has developed again. Moreover, one of the main reasons that design standards languish is because regulators do not yet know what such standards look like. In order to achieve a suitable set of design standards, regulators will have to work closely with industry,” he said.

“An enabling environment for such game-changing mobility technologies is key and there is no doubt that by facilitating testing and trials, regulatory bodies can facilitate a ‘fit-for-purpose’ regulatory environment to support the deployment of solutions in the market.”

There are also a number of different approaches to compulsory third-party liability insurance for drones, which Mr Thompson said was unsurprising in the current market.

“Inevitably there will be significant variations in drone regulations and insurance requirements from country to country as regulatory authorities struggle to adapt current and prospective laws to new technology and to national social, economic and political priorities,” he said.

“In many jurisdictions, such as the UK and the EU, compulsory insurance requirements are already in place with commercial and recreational drone operators required to have cover dependent upon the risk their operations pose. Factors such as weight and specifications of the drone and the operation it is intended to undertake determine the level of risk. Conversely, in the USA, Australia and New Zealand, for example, drone operators are not at present required to take-out third-party liability insurance, but such cover is strongly recommended.”