Game of drones - the law

Paul Feild examines the issues that local authorities may face as a result of the use of drones.

Drones are appearing everywhere. We see them on the news as a hi-tech weapon e.g. the Reaper which can launch air to ground missiles and now on the domestic scale with them being used as the current hobby plaything. Amazon has tested the option for them to deliver parcels. The Swiss Post Office is looking at using them to deliver up 1 kg packages. We are seeing them mainly in the form of multi-rotor devices. The Economist estimates that the sales will exceed 1 million this year. In a nutshell they provide an economic opportunity to move objects, visualise and measure things from the air. The correct description is “UMA’s” or unmanned aircraft.

This paper will give a background and outline of the law relating to drones and why they will become a major issue for local authorities.

Drones are as the definition above describes, unmanned aircraft controlled by an operator who will steer the aircraft in the air. This will be done by radio control and additional feedback by the drone utilising the Global Positioning Satellites (“GPS”).

Drones have the capacity to provide real assistance in particular to law enforcement and rescue agencies whether it be an aerial survey of a crime scene or searching for lost people in rocky or boggy terrain. The farming and agriculture sector have already found them of use. As an example farmers have found they can significantly reduce the level of crop spraying by identifying areas within a field which need attention then localising the administration of chemicals to address the issue. Drones have been used to carry out surveys of buildings and it is likely that housing authorities will utilise them to carry out inspections of roofs and the fabric of high buildings. Their expendability means they can enter areas which would present risk to humans such as damaged nuclear power stations.

Unfortunately with every positive use of the device offenders have also put them to less savory uses. In 2015 a drone was crashed onto the White House lawn and in April 2015 a drone with radio-active sand was placed on the Japanese Prime Ministers Office. More recently in March 2016 the Flying Scotsman locomotive was hit by a drone.

The biggest fear is of a strike to an engine of a commercial airliner. So far it has yet to occur but the drone’s composition particularly the lithium batteries could cause far more damage than a bird strike and a catastrophic total engine failure. Furthermore it seems drones are being used for drug smuggling with various instances of drones being used to pass contraband into prisons such as narcotics and mobile phones. It will be only a matter of time before they are used for a terror outrage.

The Law

Local authorities particularly with rural locations will no doubt acquire drones to carry out their work and will expect that their elected members will seek guidance. Apart from the law of negligence and a need to take proper care drones buzzing over other people land is likely to amount to a nuisance, and potentially controlled by an injunction.

The basic law in the UK is set out in the Civil Aviation Act 1982. This gives power to the Secretary of State to make secondary legislation referred to as Air Navigation Orders. The key legislation is the Air Navigation Order 2009. A distinction is made on the size of the drones.

For unmanned aircraft of 20 kg or less, these are referred to as a 'small unmanned aircraft', for which the requirements are a little less stringent and are covered within Air Navigation Order 2009[i] Articles 166 and 167.

There is a threshold of 150 kg in that drones above that weight are subject to European legislation (the European Aviation Safety Agency), those lighter are subject to national law. There are no current civilian drones of that size in operation.

I will consider the smaller and common drones i.e. less than 20 kg. The first point to be made is that any commercial activity with a drone is likely to be unlawful unless authorised by the Civil Aviation Authority (CAA), and that failing to comply with the Air Navigation Order is an offence.

Article 166 provides inter alia that the drone must be within sight of the operator who must maintain direct, unaided visual contact with the unmanned aircraft sufficient to monitor its flight path in relation to other aircraft, persons, vehicles, vessels and structures for the purpose of avoiding collisions. The convention for visual contact is normally taken to be within 500 m horizontally and 400 ft vertically of its remote pilot (i.e. the ‘person in charge’ of it). Operations beyond these distances must be approved by the CAA (the basic premise being for the operator to prove that he/she can do this safely). Furthermore if a drone weights more than 7kg there are additional restrictions in terms of how high it can fly (400ft) and the air space it can enter (i.e. Air space classes A, B, D & E ) without specific authority to do so. Animals or things must not be dropped from it. Additionally if the drone carries a form of data capture or surveillance it will be subject to further restrictions.

Article 167 (which is likely to apply in most cases) addresses the use of ‘Small Unmanned Surveillance Aircraft’, and requires that the person in charge of a small unmanned surveillance aircraft must not fly the aircraft, except in accordance with a permission issued by the CAA, over or within 150 metres of any congested area or or within 150 metres of an organised open-air assembly of more than 1,000 persons or within 50 metres of any vessel, vehicle or structure which is not under the control of the person in charge of the aircraft.

The CAA before issuing a permit will require an applicant to provide details of their Operations Manual (describing the operation and the processes/procedures) and evidence demonstrating the appropriate level of pilot competence (theoretical knowledge and flying skills).

It can be seen that the operation of a drone for reward is subject to significant regulation. To assist users the CAA has published a Dronecode https://www.caa.co.uk/drones/ 

Drones and the Information Commissioner (ICO)

As discussed, the Air Navigation Order distinguishes drones which carry out surveillance. The ICO considers that drones if equipped with cameras are covered by the Data Protection Act and that users should operate them in a responsible way to respect the privacy of others. The ICO states:

"The use of UAS [ unmanned surveillance aircraft ] have a high potential for collateral intrusion by recording images of individuals unnecessarily and therefore can be highly privacy intrusive, i.e. the likelihood of recording individuals inadvertently is high, because of the height they can operate at and the unique vantage point they afford. Individuals may not always be directly identifiable from the footage captured by UAS, but can still be identified through the context they are captured in or by using the devices ability to zoom in on a specific person. As such, it is very important that you can provide a strong justification for their use."

The ICO advises:

• Let people know before you start recording.
• Consider surroundings. A drone may intrude on the privacy of others (such as in their back garden). It is unlikely that you would want a drone to be hovering outside your window so be considerate to others and don’t hover outside theirs.
• Know the camera power. It is a good idea to get to know the capability of the camera in a controlled situation to understand how it works. What is the quality of the image? How powerful is the zoom? Is there control when it starts and stops recording? Drone cameras can be capable of taking unusual and creative pictures from original vantage points.
• Plan the flight. A drone’s battery life is likely to be short. By understanding its capabilities you will be able to make best use of its flight and it will be easier to plan how to avoid invading the privacy of other people.
• Sharing. Once the drone has landed, care needs to be taken with the images, particularly if you’re thinking about posting them on social media. Apply the same common sense approach as with images or video recorded by a smartphone or digital camera.
• Keep the images safe. The images may be saved on an SD card or USB drive attached to the drone or the camera. If they are not necessary, then delete them. If kept, then make sure they are in a safe place.
• Data Controller. As with personal use, if using a drone for a more formal, professional purpose, then it is important that legal obligations as a data controller are understood.
• For more information.The CCTV code (for organisations), which has a section about drones (referred to as UAS in the code).

For public authorities it is important to remember that they will be bound by the Human Rights Act and the European Convention on Human Rights Article 8 (respect for Private and Family life etc). In addition the use of drones for investigatory work is almost certainly going to amount to directed surveillance pursuant to section 71 of the Regulation of Investigatory Powers Act 2000 and so necessary authority will need to be acquired.

Dealing with unwanted drone activity

So can a drone be shot down? The answer is no. There is no ownership of the airspace above your property so apart from the illegality of discharging firearms; it would amount to criminal damage. Nevertheless it could amount to a civil nuisance. Technology is being developed to bring drones down including jamming devices which either block the GPS signal and or that the drone pilot. However that can lead to a heavy object out of control in the sky destined to lose attitude and eventually hit the ground. For the same reason flying net drones as developed in France carry similar dangers. Interfering with a drone flight may also be an offence under Article 138 of the Air Navigation Order in endangering the aircraft (it does not matter that it is unmanned).

As will be noticed the Air Navigation Order was made in 2009 and clearly the provisions were not specifically drafted to deal with the current profiligation of drones. A review is in progress and there are moves to develop the common law to address the current lacuna particularly with regard to the issue of privacy. In the United States there have been calls to treat the drone as a privacy catalyst[ii], that is to say that a key definition of privacy is not to be bothered unnecessarily and unmanned surveillance aircraft are doing precisely that.

Summary of the Law

In essence therefore, provided the drone has a mass of 20 kg or less then:

1. The flying operation must not endanger anyone or anything.
2. The drone must be kept within the visual line of sight.
3. Small unmanned aircraft (irrespective of their mass) that are being used for surveillance purposes are subject to tighter restrictions with regard to the minimum distances that you can fly near people or properties that are not under your control. If you wish to fly within these minima, permission is required from the CAA before operations are commenced.
4. CAA permission is also required for all flights that are being conducted for aerial work (i.e. in very simple terms, you are getting paid for doing it).
5. The 'remote pilot' has the responsibility for satisfying him/herself that the flight can be conducted safely.
6. The Information Commissioner has published guidelines that must be treated as a minimum. Local authorities will be bound by the CCTV Code. This will need to form part of an operations method if applying for a CAA permit as best practice.
7. Remember these aircraft are subject to the law and the user may find themselves subject to both the civil and criminal law if they fail to follow the guidelines identified
8. A landowner does not have the right to shoot an unauthorised drone down by force they may cause serious injury or damage to property. The matter should be reported to the Police and the CAA.

Your experiences?

Have you had any legal issues with drones? Do let me know. LBT Legal’s Governance Unit will be running a course on Drone Law later this year and look forward to hear from you as to any aspects of concern which we can try to cover.

Dr. Paul Feild is Senior Corporate Governance Lawyer at Barking & Dagenham and Thurrock Legal Governance Unit. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..