Game of Drones the Law - Season Two

Drone 36244709 s 146x219There have been a number of recent developments in the law and regulation of drones. Paul Feild sets out the key points for local government lawyers.

It is just over two years since Local Government Lawyer published my first article on drones. There have been some developments in the law and drones continue to dominate the news headlines. So, it is timely for an update. Drones are appearing everywhere. Ironically both the blue light services and the criminal fraternity have taken up the opportunities of an eye in the sky and the ability to fly over fences and walls. Various emergency services are exploring the use of Drones for on the spot assessment of disaster zone for example the summer moorland fires and their use has been abused to the smuggling of drugs.

The 2018 Farnborough air show revealed the very latest form of Drone a fighter plane; the Tempest which will be able to fly without a pilot and will be a replacement for the Euro Typhoon and the F35, and will be equipped with high power laser weapons!

There have been some changes in the law and as it is inevitable that the jobbing local government lawyer will in due course be consulted. So here is an update.

The Law

Drones are, in the UK unmanned aircraft (“UMA”) 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 i.e. GPS.

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’s land is likely to amount to a nuisance, and potentially controlled by an injunction. So here’s the basic law.

The principal UK legislation 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 2016 (S.I. 2016/765) (“2016 Order”). The 2016 Order replaced the Air Navigation Order 2009. This is amended by the Air Navigation Order (Amendment) 2018 (“2018 Order”) and brings in with it changes which came into force on 30 July 2018.

The first point to be made is that any commercial activity with a drone is likely to be unlawful unless authorized by a permission granted by the Civil Aviation Authority (CAA), and that failing to comply with the Air Navigation Order is an offence.

Article 95 (which is likely to apply in most cases) addresses the use of ‘Small Unmanned Surveillance Aircraft’ (SUA) and requires that the person in charge of a small unmanned surveillance aircraft must not fly the aircraft except in accordance with a permission granted by the CAA. over or within 150 metres of any congested area 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.

Article 94 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).

Yes, there’s a mixture of metric for short distances and feet for altitude in the Air Navigation Orders. Be sure not to get them mixed up.

One key change is that flying of small unmanned aircraft which was regulated by articles 94 and 95 of the 2016 Order, previously applied to the “person in charge of” the aircraft.

The 2018 Order changes this approach, so that there will now be two new categories of person responsible that being the “remote pilot” (defined as an individual who remotely operates the aircraft’s flight controls, or who monitors its course while it is flying automatically and is able to intervene by operating the flight controls) and the “SUA operator” (defined as the person who has the management of the aircraft). What this means is that an owner of the drone say a local authority will have responsibility too for compliance with the Order with regard to the drones operation.

The big change is in terms of the prohibition of use regarding overall weight of the Drone. Article 94(4)(c) of the 2016 Order currently prohibits flying a small unmanned aircraft over 400 feet above ground, but this applies only to aircraft with a mass of more than 7kg. From 30th July 2018 this prohibition will apply to all small unmanned aircraft see the new Article 94A.

Furthermore also from 30th July 2018 small unmanned aircraft will be prohibited from flying within 1 kilometre of a protected airdrome’s boundary (defined by the Secretary of State). Simple guidance is provided on the CAA’s Dronesafe Site see: http://dronesafe.uk/ and a revised DroneCode is downloadable.

A major weight distinction will apply for small unmanned aircraft with a mass of 250 grams or more. From 30th November 2019 these provisions will prohibit the remote pilot from flying the small unmanned aircraft, and the SUA operator from causing or permitting it to be flown, unless the SUA operator has a valid certificate of registration and the registration number is displayed on the and the remote pilot has a valid Acknowledgement of Competency.

Certificates of registration and Acknowledgements of Competency will be issued by the Civil Aviation Authority, but they will not be required to accept applications before 1st October 2019. Breach of the new Articles can be an offence under article 265 of the 2016 Order.

It is entirely possible that drones used for public services will meet or exceed the 250-gram threshold particularly if there are attached payloads be it camera or surveillance equipment as it will count toward the gross weight. It is therefore important to assess existing drones and consider in the procurement what the weight will be, because from the 30th November 2019 then both the remote pilot and the SUA operator will be criminally liable if they operate or cause or permit the flight of the drone without the necessary registration and acknowledgement of competency.

For heavier UMA 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.

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).

Drones and 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 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. 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 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 organizations), 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. A drone is still an aircraft. 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, a drone hovering near a home could amount to a civil nuisance [1]. 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 240 of the Air Navigation Order in endangering the aircraft (it does not matter that it is unmanned).

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 [2], 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, weight your drone then if it weighs 250 grammes or more it will soon be regulated:

  1. The flying operation must not endanger anyone or anything.
  2. The drone must be kept within the visual line of sight
  3. All drones must never fly higher than 400ft or within 1 kilometre of an airdrome’s boundary without authorisation.
  4. 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.
  5. 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).
  6. The 'remote pilot' and the “SUA Operator” has the responsibility for satisfying him/herself that the flight can be conducted safely.
  7. The Information Commissioner has published guidelines that must be treated as a minimum. Local Authorities will be bound by CCTV Code. This will need to form part of an operations method if applying for a CAA permit as best practice.
  8. 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
  9. 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.

Dr. Paul Field is a Solicitor in Barking & Dagenham Council's Legal Governance Unit. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

[1] And contrary to ANO 2016 Article 95(2)(c) not to be within 50 m of structure not controlled by operator.

[2] Professor Ryan Calo, University of Washington, see 2011 64 Stanford Law Review Online 29

 

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