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Drones – your new commercial eye in the sky?

September 2017 - Issue 97

In no more than five years, the commercial drone industry has, for want of a better term, taken off.

In 2014, 359 commercial drone operators had been approved by the Civil Aviation Authority (the CAA), the lead agency for the regulation of drones. There are now over 3,000 approved operators (as of July 2017).

This article reviews the uses of drones; the legal landscape for the operation of drones, including anticipated developments; and practical steps for businesses to take if they want to use drones.

Use of drones

Given the decrease in the cost of drones and the increase in their availability, a variety of businesses are starting to investigate using drones. Drones are both quick and simple to set up, flexible in their uses and can make otherwise hazardous task substantially safer, as no human has to leave the ground or enter a dangerous area.

In agriculture, drones can be used for crop monitoring and dusting. In the construction industry they can be used for site surveys or building inspections. In the media industry, drones’ cameras can capture unique footage from otherwise inaccessible angles. Drones are also being trialled, along with other autonomous vehicles, for the delivery of goods, most notably by Amazon.

Legal landscape

The legal landscape governing the use of drones arises on the basis of three key areas:

This section also considers anticipated legal developments in the regulation of drones.

Aviation law

The Air Navigation Order 2016 is the legal basis for the majority of national regulation of civil aviation; it includes key rules governing the use of drones (referred to as “small unmanned aircraft” or SUAs).

Under article 94(5) of the Order, “[t]he person in charge of a small unmanned aircraft must not fly the aircraft for the purposes of ‘commercial operations’ except in accordance with a permission granted by the CAA”. “Commercial operations” is in turn defined as “any operation of an aircraft … performed under a contract between an operator and a customer … in return for remuneration or other valuable consideration”. Thus when being used for business purposes, drones will almost always have to be operated in accordance with CAA permission.

The standard form permission from the CAA includes certain limitations on the use of the drones. In particular, the standard permission prohibits drones from being operated within 50 metres of anyone or anything not “under the control of the person in charge of the SUA”. If businesses wish to use drones in circumstances not covered by the permission (which is particularly likely to arise if the drone is to be used in built-up areas), they would have to ensure that its use was covered by a non-standard permission granted by the CAA. This would need to be supported by an operating safety case setting out how the drone is to be used safely.

Regulations also specify that drone operators must maintain third party insurance of at least 750,000 Special Drawing Rights (currently equivalent to around £800,000). In practice, given their potential liabilities, commercial drone operators typically obtain insurance cover of at least £5 million.

Trespass and nuisance

In addition to aviation law controls on drones, drone operators also need to be aware of two general legal claims that could be made against a drone operator: trespass and nuisance.

Trespass is a direct, “unjustifiable intrusion by one person upon land in the possession of another”. While it is reasonably clear that taking off and landing a drone on someone’s land without the landowner’s permission constitutes trespass, there is limited case law on whether merely flying over another person’s land amounts to trespass. As trespass is based on the protection of a landowner’s property rights, the courts are likely to make decisions based on whether such a flight would interfere with the use and enjoyment of the land; for example, a higher flight is less likely to constitute trespass as it is less likely that it would interfere with the use and enjoyment of the land.

“The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.” Unlike trespass, nuisance does not require the direct entry of one person (or their drone) onto the land of another. However, the court would consider carefully whether the drone usage was an undue interference with the use or enjoyment of the land. For example, in a case involving an aircraft flying over someone’s land and taking a photograph of the property, the judge held that there was no nuisance “[b]ut if the circumstances were such that [someone] was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity, I am far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief”.

Given that mass drone usage is only a recent development, the law in this area has not been fully tested. It is arguable that flying a drone high above a person’s property will not constitute trespass. Similarly, occasionally photographing someone’s property is unlikely to constitute nuisance. Nonetheless, given the developing law it would always be advisable to obtain the consent of any landowners affected by a flight before allowing the drone to take off.

Privacy and data protection

Drones with cameras clearly have the potential to capture footage of individuals in private situations, particularly given the unique viewpoints from which they can record.

When drones are used for business purposes, the drone operator should ensure that the data is collected, used and stored in accordance with the principles contained in the Data Protection Act 1998 (soon to be replaced by the General Data Protection Regulation). In practice, this entails ensuring, for instance, that the camera is only used at appropriate points in the flight and that people who are likely to be affected by the recording are made aware of the drone.

It also might be possible for individuals to take legal action against a drone operator if, for example, the footage captured of them is of a private nature or is particularly intrusive.

Further developments

In July 2017, the government announced its intention to introduce further regulation of drones. Drones weighing over 250 grams will have to be officially registered and its operators required to complete a new drone safety awareness test, which will cover safety, security and privacy rules. The government also plans to bring forward and expand the use of geo-fencing technology, inbuilt  drone systems that prevent drones from entering specified areas, such as airport air space, military sites and prisons.

Practical steps to take when using drones

If your business only uses drones occasionally, it is likely to be most efficient to engage a contractor to provide the drone-related services on your behalf. The contractor is likely to be more familiar with the relevant laws and in a better position to ensure that drones are used safely and legally.

As already noted, there are now over 3,000 approved contractors to choose from. To select an appropriate contractor in the expanding market, recommendations for drone operators should be obtained from colleagues or business partners and examples of previous work sought.

Once you have identified an appropriate contractor, you should ensure:

  1. that the contractor is listed on the CAA’s website as an approved operator of SUAs;
  2. that the work that it is proposed will be undertaken is within the scope of the permission granted by the CAA; and
  3. that the contractor holds appropriate insurance.

Where drones are to be used in circumstances not covered by the CAA’s standard permission (for example, where it is proposed that drones are used near to a neighbouring property), you should ensure that the operator has either general or specific permission from the CAA to use the drone in the intended manner.

Having ensured compliance with aviation law, you should also gain permission from the owners of the land that the drone will fly over or take pictures of (to avoid accusations of trespass or nuisance) and ensure that you make people aware of filming (if applicable) and only record footage relevant to the proper use of the drone (to ensure compliance with relevant privacy and data protection rules).

Following these simple steps should ensure that your business can use drones productively, safely and legally.

Want to find out more?

Join us for our next Developers Club seminar when we look forward to exploring key issues of relevance to drone usage in more detail.

 
 

 

 

 

 

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