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Drone law: heading into turbulence?
In 2015, the U.S. Federal Aviation Authority anticipated that as many as 1,000,000 small drones could be sold during the Christmas period. Closer to home, our own Civil Aviation Authority (CAA) warned of the dangers posed by drones to passenger jets following a number of near-misses. These warnings have been made at the same time as the possibilities and potential of drones exploded into the public consciousness, perhaps most famously as Amazon advanced its plans to deliver packages directly to customers’ homes using remotely piloted aircraft systems.
Towards the end of 2014, legislators in the United Kingdom began to seriously turn their attention towards the phenomenon by publishing a consultation with commercial drone operators, including a number of recommendations to more adequately regulate this emerging industry. The consultation was published in early 2015 but already, by the end of the year, there were over 1,300 companies and individuals registered to use drones in the UK. Have governments and regulators belatedly recognised the speed at which the commercial drone industry is developing and are they scrambling to catch up?
In this article we shall examine some of the principal rules which apply to drone users, both private and commercial, and explore how these rules may change in the future as governments consider imposing a stricter regulatory framework for this emerging industry.
The CAA regulations divide drones into two categories: those weighing up to 20kg and those weighing in excess of 20kg. The CAA imposes a ban on operating drones weighing in excess of 20kg within civilian airspace and, in relation to drones weighing 20kg or less, users must obtain permission from the CAA for using drones for commercial purposes or when used (either commercial or privately) outside of certain operating parameters.
The rules state that drones weighing up to 20kg must:
- Be operated within the direct line of sight of the pilot
- Be operated no more than 400 feet from the ground and no more than 500m from the pilot
- Be operated away from aircraft, helicopters, airports and airfields
- Be authorised by the CAA to carry out any commercial work
In addition to the above, drones capable of “capturing data” must:
- Be operated at least 150m away from ‘congested areas’, defined as an ‘area of a city, town or settlement which is substantially used for residential, industrial, commercial or recreational purposes' and not within 150m of an open air assembly of 1,000 persons or more
- Not be operated (at any height) directly over, or within, 50m of any persons, vehicles, vessels or property which are not under the control of the pilot
These rules are subject to intense lobbying by commercial interests which, in particular, would like to be able to operate drones closer to population centres. The CAA and law-makers have the difficult task of balancing public protection against the needs of a new and growing industry.
In April 2014 the first person in the United Kingdom was convicted for a drone-related offence. The CAA brought a prosecution against a man for flying a small drone within 50 metres of a structure (in this case, over a submarine-testing facility operated by BAE Systems). The defendant pleaded guilty to the charge and was fined £800 and ordered to pay costs of £3,500.
The defendant claimed that he had not deliberately flown the drone over the facility and that he had lost radio contact at some point during the flight. The case perhaps demonstrates the twin dangers of drones: that they may be used deliberately near sensitive locations for some nefarious purpose (such as by terrorists); and that the limitations of drone technology are such that accidents can, and will, happen from time to time.
The successful prosecution referred to above is an example of current laws being used to regulate drones but it is clear that the existing patchwork of relevant laws and regulations will be tested in new ways as ‘drone case law’ develops and there are already calls for more stringent ‘drone laws’ to be introduced.
The CAA regulations deal specifically with the issue of surveillance by drones by confirming that the rules requiring drones to be operated at least 50m away from any persons, vehicles, vessels or property are intended to ensure that drones cannot capture identifiable images of the public.
These rules sit alongside the rights and protections afforded to data subjects under the Data Protection Act 1998. The Information Commissioner’s Office (ICO) has issued guidance to private users of drones and the general theme is that pilots should exercise common sense and respect the privacy of others in places they would expect – such as in their homes and back gardens.
The ICO has issued separate guidance for commercial operators of drones. Its guidance states that the use of surveillance drones can be highly intrusive and therefore commercial users should be able to provide ‘strong justification for their use’. The ICO requires such users to ensure that they do not record identifiable images of members of the public and warns that images taken a distance, when the persons appear anonymous, remain problematic if the persons can be identified by zooming into the image or if the persons could be identified given the context in which the image is taken.
The Article 29 Data Protection Working Party (which is an independent European advisory body on data protection and privacy and advises EU member states in relation to the implementation and harmonisation of data protection law in the EU) published an opinion in June 2015 setting out its recommendations to protect the personal data which may be captured by surveillance drones. The Article 29 Working Party reminds drone operators that they must comply with fundamental data protection principles, such as ensuring there is a legal basis for recording personal data (i.e. by obtaining consent from the data subjects, in relation to the performance of a contract, a legal obligation or pursuant to a legitimate interest). The Article 29 Working Party also has made specific recommendations to operators – for example that drones should be made visible and identifiable and that if images of people are recorded, technology should be used so that (for example) the images are automatically blurred. The opinions of the Article 29 Working Party serve as a useful signpost as to how regulators will respond to the privacy issues in the future and so drone operators are advised to take note of these recommendations.
Although no cases have arisen so far, in principle an action could be brought against a drone operator under the torts of negligence or nuisance.
- Negligence - the principles at the heart of negligence are that there must be a duty of care between the injuring party and the injured party; the injuring party breaches that duty; and that the damage suffered by the injured party would not have occurred but for the negligent act. It seems clear enough that a drone pilot would owe a duty of care to any persons under the drone’s flight path and that a claim could be sustained for any injuries suffered a person, or damage to a person’s house, caused by a drone falling out of the sky.
- Nuisance - the tort of nuisance is very wide and allows a person to bring a claim for most acts that interfere with their use and enjoyment of their land - a claim brought in relation to excessive drone noise would be made under this this tort.
As the use of drones expands, it is very likely that these torts will be those used by private individuals seeking redress for damage or disturbance caused by drones.
The CAA has robust rules in place for all types of drone user although these rules will be subject to greater lobbying from industry groups. In 2015 the House of Lords’ European Union Committee recommended a number of steps which could be adopted at the EU level to improve public safety, including ensuring pilot competence and drone airworthiness, the logging of flight plans in a central database, insurance, and the development by industry of ‘detect and avoid’ systems designed to ensure drones avoid ground and air-based obstacles. For some commercial operators, a detailed regulatory framework would bring operational and legal certainty – as well as legitimacy - to their industry. For others it is possible that such measures would improve the perception of drone safety as they push for a repeal of the CAA’s ‘no fly zones’ in urban areas.
However, irrespective of whether commercial entities are able to secure greater operational freedom, they will undoubtedly remain subject to a form of regulation which is likely to become more detailed and sophisticated as legislators at the national and European level catch up with developing technology. Furthermore, both commercial and private operators will need to consider their liability to members of the public and take steps to minimise the chance of an accident and – for when it does happen – ensure that they are adequately covered by insurance.
 http://www.bbc.com/future/story/20140109-drones-from-battlefield-to-farm; http://www.bbc.co.uk/news/uk-29717771
 http://www.caa.co.uk/Commercial-industry/Aircraft/Unmanned-aircraft/Small-unmanned-aircraft/ (Article 167)