If we believed everything we read, we would expect to see fully driverless cars on the roads tomorrow. But the reality is very different.

BMW and Daimler have teamed up to bring vehicles that can handle autonomous highway driving and parking, without any human input, to the market by the mid-2020s. The U.K. government has said it wants to see highly automated vehicles on the road by 2021. But that timeline presents a big challenge.

Of course, one of the first hurdles for this technology is public acceptance. Critics of widespread adoption of these technologies cite safety as a prime concern. Although there are already driverless shuttle vehicles available, they only operate in geofenced locations (i.e. they are only allowed to operate in a strict, confined environment). Before we see fully automated vehicles on public roads, a few things will have to happen in terms of technology, regulations, and liability.

Before we look at the issues, let’s define the technology behind driverless vehicles. It’s helpful to break it down into two camps. The first is assisted driving systems that provide functions such as lane warning departure and automated emergency braking. Then, there’s the more complex systems that do not require a driver’s input at all. If we look at autonomous vehicles on a five-point scale (such as the one created by SAE), where levels four and five are fully self-driving cars, we’re currently approaching level three.

Here are the three biggest challenges facing autonomous vehicles:

1. Regulations

The challenge for regulators with any emerging technology is to strike a balance between encouraging and supporting innovation and ensuring safety. Right now, the emerging regulations and legal infrastructure are slightly behind the development of the technology. But it’s fair to say that the pace of development of regulations has increased in the past two years and there is now a focus and understanding of the importance of getting it right.

There is no real one-size-fits-all regulation because there are many different places in the world and what is acceptable in one may not be acceptable in another. Added on top of this complexity is that various levels of automated vehicles are sharing road space with human drivers.

Individual countries are developing their own approaches to the tests companies can conduct on public roads, but it’s fair to say that they all broadly supportive of testing. There are some standout leaders developing the necessary regulatory framework. KPMG identifies the Netherlands as the most autonomous vehicle-ready country. Singapore comes in second, with Norway, the United States, Sweden, Finland, the U.K., and Germany following behind. In federal systems such as the U.S. and Germany, the challenge lies in establishing a national approach, where states have the power to make decisions for themselves. On the other end of the spectrum are countries, such as Singapore, which can put regulations in place and enforce them across the entire country.

2. Liability

Another barrier at the moment is deciding who is liable in the case of accidents. Assisted driving is simple. Despite the technological assist, a human driver is still in control of the vehicle at all times. If there’s an accident, liability rests with the driver and the current rules still apply.

If a vehicle is in an accident while in self-driving mode where the driver has no input, the driver cannot be bound to the normal rules of liability. Instead, the vehicle and its manufacturer would be at fault.

The U.K.’s Automated and Electric Vehicles Act, passed in 2018, grapples with this challenge. It creates a responsibility for the insurance provider to compensate not only the person in the affected vehicle, but also the driver as well. At the same time, it creates an opportunity for that insurer to then pursue the vehicle manufacturer or the software supplier whose technology was at fault, much like a brake manufacturer if faulty brakes caused the accident. Ultimately, this represents a shift away from risk based on the characteristics of the driver and puts the risk on the vehicle itself.

Insurers are already trying to grasp what a world of autonomous vehicles means to them. Meanwhile, Tesla has also announced its own insurance product.

 

3. Cybersecurity

Cybersecurity is a huge concern. Hacks could lead to potentially deadly situations. Within cybersecurity issues, however, there’s several different problems. If there’s a mass hack that is akin to an act of terrorism, that becomes an issue for governments rather than for an individual motor manufacturer. Governments tend to recognize that. But there’s going to be some debate between those representing the manufacturers and government as to how that is managed.

On a smaller scale, much of the responsibility will fall on software providers and car makers. Government entities have already envisioned the responsibilities of this group. The United Nations Economic Commission for Europe came up with a draft regulation earlier this year that sets out a high level expectation that autonomous driving systems have the capability to identify threats and vulnerabilities. This will be a big challenge to companies. The U.K. government has also set out key cybersecurity principles for autonomous vehicles, identifying the level within an organization at which responsibilities for this issue should fit, and focusing on defense.

 

Considering these issues, a fully automated vehicle that can operate in a limited domain is not likely to be available until around 2040. The chances of using one to take a ride within a rural area without any involvement of that passenger is unlikely to happen until I’m almost too old to want to use it.

Caroline Coates,  Independent Consultant and Former Partner at DWF LLP

Caroline Coates is a lawyer experienced in liability, insurance, regulatory and risk in the motorsport, automotive, and industrial sectors. Until May 2018, she was a partner at DWF LLP and nationally, head of 2 sectors: automotive and insurance plus head of office. Since 2014, Caroline has developed expertise in the legal, insurance and regulatory aspects of connected and autonomous vehicles, with frequent speaker slots at industry conferences and articles/comments in the media

This post is adapted from the GLG teleconference, Legal Aspects of Autonomous Vehicles. If you’d like access the full transcript or talk to Caroline (or any of our more than 700,000 subject matter experts), fill out the form below.