Your Thoughts – ‘The Advent of Drone Technology: What are the Legal Considerations?’
As electronic drones are becoming more popular, more advanced, and cheaper by the day, concerns are also rising as to the rules surrounding privacy, airspace, and property.
The military have been using drones for some time now, but with rumours that some companies may eventually be using drones for delivery, that drone racing might actually be a thing of the future, and that these flying machines are increasingly becoming a danger to aircrafts, what else are we unaware of, and what more should we be thinking about in anticipation of a potential drone revolution?
This month’s ‘Your Thoughts’ is dedicated to answering these questions, as well as those in regards to legislation, camera restrictions, property and privacy matters, identification, and much more. To shed light on some of these issues, we reached out to several experts and professionals in their field, who have given particular insight into advent of drone technology and the aforementioned considerations to be made.
Jonathan Nicolson, Assistant Director of Communications at the Civil Aviation Authority (CAA):
The CAA’s prime focus is air safety. While we keep all our rules and regulations under constant review we do already have legislation in the UK aimed at securing the safety of other airspace users. The European Aviation Safety Agency (the EC body for civil air safety) has already published proposed new regulations to unify the safety oversight of drones. This ranges from small consumer devices to large commercial drones. These proposals build on existing regulations.
The EASA rules propose differing levels of regulation depending on the size of the drone (based on its risk to other aircraft), but don’t propose to limit size or restrictions. The ability to have extremely large civil drones has existed for several years and large drones (equivalent in size to the military ‘Watchkeeper’ drones) have already been flown in civil airspace in the UK.
Consumer and other small drone users should abide by existing UK legislation aimed at ensuring drones are safely separated from other airspace users. As far as the operation of large drones – these have already been flown in UK airspace as part of a trial with UK air traffic control body NATS.
Further work needs to be undertaken to develop the technology to allow these drones to safely integrate into uncontrolled airspace – the part of the airspace system not directly controlled by ATC and used by a variety of aircraft from private flying, military operations to police helicopters.
Drone registration is a complex issue with many options. On one hand having the details of drone owners would mean they could be contacted with safety information. But very few drones are ever located following an incident so registration to track users for investigation / follow up action could be less of an argument. From our perspective we believe educating users on how to fly safely and therefore preventing any incident is preferable.
We have already seen amazing development in the drone industry in a very short space of time and this will certainly continue.
Dr Kevin Curran, Senior Member of the IEEE and Senior Lecturer in Computer Science at the University of Ulster:
A case can be made for limiting drones until legislation is implemented, but in practice this is very difficult. The authorities need to concentrate on educating users, unless an outright ban is made on the sale of drones, which is nearly impossible. Individuals and businesses should of course be aware of the safety issues. People are worried about drones falling from the skies, drone blades injuring people and, of course, collisions with commercial aircraft. What the public fail to understand however, is that modern un-crewed aerial systems can be preprogramed to avoid no-flyover zones – both uploaded by the public and those set by airports and military. Modern drones also are beginning to ship with anti-collision systems on board and these make a big difference for future safety.
Ultimately, the rules governing use of drones are still evolving. In the UK, the House of Lords EU Committee posits that in the near future all commercial drone operators should register their drones, which will include leisure users in the long term. A key recommendation is that drone flights must be traceable, effectively through an online database, which the public could access via an app. They foresee, as more people buy drones as gifts, there are likely to be many more cases of people using them in circumstances that present risks, or rub up against either civil aviation law or data protection. Laws will be forced to change as a result.
Restrictions do apply to different sizes of drones. The laws applying to the use of cameras on drones are the same as recording images of other people without their consent via the Data Protection Act. Drones will play a big role in aerial photography both in business, personal and advertising. We may also see drones being used to advertise at public events and in public spaces in general.
Drone owners need to consider carefully whether they are going to be recording images of other individuals in public spaces as opposed to in their own homes or gardens, as there they run the risk of breaking data protection law. Likewise, they need to be careful when sharing recordings on social media.
Airspace issues are a big problem for drone use. Many countries are now rushing to enforce compulsory registration of all commercial and civilian drones due to concern over the use of drones by individuals with little or no knowledge of aviation rules. Typical restrictions include flying it within 150 metres of a congested area and 50 metres of a person, vessel, vehicle or structure not under the control of the pilot. In effect, users must fly drones “within sight”. Owners must not go above 400 feet in altitude or further than 500 metres horizontally. If they wish to exceed this, they need to seek explicit permission from the Civil Aviation Authority (CAA).
In 2015, a UK Airprox Board (UKAB) reported 23 near misses between aircraft and drones. Twelve were given an A rating – meaning there was “a serious risk of collision”. In one incident a drone passed within 25m of a Boeing 777 near London Heathrow Airport. There is a case of an individual named Robert Knowles was fined £800 and ordered to pay costs of £3,500 after being prosecuted by the Civil Aviation Authority (CAA) for flying a drone within 50 metres of the Jubilee Bridge on the Walney Channel and flying over a nuclear installation, the BAE System submarine-testing facility.
Authorities around the world are aware of the crimes that drones can be used for. Since December 2015, the Federal Aviation Administration (FAA) mandates that all owners of model aircraft, small unmanned aircraft or drones, or other RC aircraft weighing between 0.55 and 55 pounds need to register online before flying their drones. This is a step towards identification plates of a sort, requiring drone owners 13 years and older to submit their name, email and home address to receive a Certificate of Aircraft Registration/Proof of Ownership. This will include a unique identification number owners must affix to any drone they own and operate exclusively for recreation.
Delivery is a common use for drones and has been since their early days. In five years, it will not be uncommon to see drones delivering packages. Grocery delivery is just the beginning. Amazon, of course, is the highest profile company seeking to usher in guidelines for autonomous drone deliveries. Other major drone players such as Parrot, Cyphy Works, Skyward & DJI are also contributing to the debate. One of the more likely retailers to use them will be local pharmacies, people can place their repeat prescriptions online with local health clinics, have the prescription automatically forwarded to the pharmacy, then use drones to deliver medicine to local homes.
Some benefits of drone deliveries are cost savings for businesses, an increase in customer reach and a faster speed of response. The price of fuel is only going to go up in the future, along with the other large costs associated with maintaining delivery fleets. Therefore, the economics of the situation will push a lot more of this business to the skies. Furthermore, customers win as the goods could be delivered in almost real time.
Rufus Ballaster, Partner, Carter Lemon Camerons LLP:
The overwhelming majority of the current rules which govern airspace, property rights and privacy rights are the product of eras when the widespread commercial use of drones was barely conceivable. This means that, at face value, many of the potential commercial uses of drones may be illegal as the law stands.
Originally, unless qualified, property rights were considered to go “down to the depths and up to the skies.” With the dawn of the aviation age, that principle was qualified by what are now the Civil Aviation Authority (CAA) regulations.
With the introduction of these regulations, the common law rights to challenge trespassers were overridden to allow commercial aviation, both literally and figuratively, to take off. CAA regulations apply to most flying objects both in relation to the use of Upper Strata airspace and indeed Lower strata –below 1,000 feet from ground level the complexity being that a drone would have to comply with property law obligations not to trespass as well as CAA drone rules in order to stay squeaky clean.
For drones weighing 20kg or less, CCA regulations require prior consent whenever a drone is flown near people, within 50m of a person or near a structure, vehicle or vessel which is not under the control of the drone operator.
For drones weighing 20kg or more, the regulations are more stringent. These drones need permission, a qualified pilot and a certificate of airworthiness. A delivery service concept would need to have this in mind and ensure discussions took place with the CAA.
Just as a construction crane is an object which is not entitled to trespass over a boundary without an oversail licence, a drone is an object which, if it is used in a way which has not been permitted, will be committing a trespass into a property owner’s land.
However, we would have no railways, no drainage systems, no motorways, no airports and airlines, no radio, nor TV transmission had previous generations of law makers and the general public not made regulations compromising property rights, for the public good, so that in a properly controlled way those services to start to happen.
If drone delivery proves technologically achievable at a reasonable cost, then there will be some debate about the balancing of the rights of many and the rights of the few as well as worries about safety standards. I, for one, expect the law to be played with enough to find that the Englishman’s castle is that bit less secure from intrusion in relation to being overflown by these mechanical beasts of burden than they are today.
Emma Wright, Commercial Technology Partner at Kemp Little said:
Civilian drone use is regulated in the UK by the Civil Aviation Authority (CAA) for drones up to a mass of 150kg, at which point jurisdiction currently shifts to Europe. To avoid the more burdensome regime a drone must fall within the definition of a ‘small unmanned aircraft’ which is essentially a drone of up to 20kg without its fuel but including any articles or equipment. There are clear risks and benefits from widespread use of commercial drones as they have a broad range of applications and our congested airspace together with the forces of gravity, means the potential for harm to the public or damage to property cannot be ignored.
The UK CAA admitted earlier this year that the rules and regulations around drone use are “evolving.” Currently commercial drone services provided by companies require prior permission regardless of size where the service falls within the definition of ‘commercial operation’ in the Air Navigation Order 2016 which is: “…any operation of an aircraft other than for public transport—(a) which is available to the public; or (b) which, when not made available to the public, is performed under a contract between an operator and a customer, where the latter has no control over the operator, in return for remuneration or other valuable consideration.” The intent is exactly the same as the previous definition of ‘aerial work’ in the 2009 Air Navigation Order. There are various regulatory requirements needed including insurance and the equivalent of passing a driving test in order to get permission from the CAA. For non-commercial operators flying drones under 20kg this can be carried out without permission subject to the operator remaining within ‘direct, unaided, visual contact’ with the drone throughout its flight. The boundary is set as five-hundred metres horizontally and four-hundred feet vertically from the operator otherwise permission from the CAA is needed. Additional safeguards also exist including no-fly zones in order to protect buildings, other obstacles and the wider public and segregated airspace. By-laws also exist in specific areas (such as the New Forest) where permission is needed before flying.
The distinction between commercial use seems fine: if a company buys a drone for its own internal site mapping or internal operations, providing it meets the other restrictions, it does not need permission.
The EU is looking to harmonise the licensing and permitted use of drones across Europe. Across the UK we can expect a crackdown on irresponsible use of drones regardless of use, I suspect in a similar way that applies to drivers of vehicles. However, if irresponsible use becomes an increasing problem, a broader licensing regime is likely to be imposed and a way of identifying all drones and their operators in order to hold them to account similar to a vehicle’s registration plates. Clearly if we get to the stage that drones operate on the basis of automation, then the regulatory regime is likely to need to be revisited just like in the case of connected cars.
Where the drone collects and processes personal data (regardless of distance if living individuals can still be identified) this is caught by the UK Data Protection act 1998. The ICO has recently extended its CCTV Code of Practice to include public use of drones where they are collecting information about individuals. Clearly filming without permission is arguably a breach of privacy.
There are clear benefits for removing vehicles from the roads. Of course the licensing and regulatory requirements for drone use and ownership will need to be weighed up in any costs benefit analysis.
The technology is constantly evolving with drones becoming faster, flying at longer ranges, and carrying increasingly sophisticated equipment. Hopefully there will be significant improvements to aerial avoidance technology to allow the use of drones to be used for more commercial purposes.
Neil Falconer, Commercial Property Solicitor at Thorntons:
As with any newly formed technology that pushes the existing legislative framework, there is a propensity for media and political backlash to push for new and possibly heavy handed provisions. This needs to be restrained to focus on the real harm that the technology is creating and if the expansion of any legislative provisions would actually address this harm.
There are fantastic potential developments in drone use, such as crime prevention, fire detection and control, search and rescue, scientific research, inspection of industrial structures (oil rigs, power plants, pylons and power lines), media and journalism and creative and artistic projects. Indeed a search of drone footage on YouTube displays page after page of impressive aerial footage showing a landscape vantage point that brings pleasure to the viewer and the film maker. On that basis it should be kept in mind that the vast majority of “hobbyist” drone use is benign and brings happiness to many people. Further the vast majority of commercial drone use is saving industry a great deal of money, and the potential use in the area of accident and emergency can save lives. The future development of effective drones in all these areas and many more is dependent on their commercial success to allow future development.
From an Intellectual Property and Media perspective the main issues surrounding drone use are privacy and harassment. Encroachment on privacy through drone use offers a detachment between the potential infringement and the perpetrator not previously seen in privacy cases. This is a trend that echoes through other areas of technology. While an individual may not dream of screaming abuse at a celebrity in public, they may do so on social media. While an individual may not climb up a garden wall with camera in hand, they may fly a drone from a distance and obtain equally private footage.
It would therefor follow that any regulatory framework of drone use in relation to privacy and harassment should act to remove that detachment and sense of anonymity as much as possible. Drone filming of individuals on their own private property would almost certainly constitute a breach of data protection and privacy law; but if the footage is uploaded online within the hour the practical options available to the victim of the breach are minimal. Tracking the origins of the footage can be difficult and ongoing legal action in celebrity cases would only serve to raise the profile of the original infringement. As with many breaches of privacy happening on an online platform, the victim may feel it is easier to ignore it and move on, following the logic that the less a fuss you make of it, the quicker the issue will pass.
Technological advances are inevitably faster than legal ones. However, the remedy for irresponsible drone use may be a technological solution. The compulsory registration and tagging of drones, potentially offering the ability to reveal the details of the drone operator in real time, would remove this aspect of anonymity and demand the accountability of the operator.
Hopefully the accountability of users along with the enforcement of privacy and data protection law would create enough of a deterrent to prevent misuse becoming a common issue. Furthermore the requirement for drone users to be on a register would allow for operators who breached these laws to be prevented from future drone ownership.