Suddenly, anyone can ‘get into’ aviation, resulting in reported near misses with bigger aircraft and hyper-sensitivity to nefarious misuse.
The principal concerns surrounding private drone use have been safety, regulation and privacy, which are key to ensuring the future of private drone use, both in the UK and abroad. Privacy concerns among individuals are particularly high, although such concerns are only obliquely covered by aviation regulations.
The private use of drones may flourish as a burgeoning legal practice area as individuals have already faced criminal prosecutions for breach of the regulations. It is possible that companies may have liability for the acts of their employees where they are required to pilot drones. The insurance sector will, therefore, also play an increasingly important role in the future of drone use.
The ‘Red Flag Act’ (The Locomotive Act 1865) is probably considered with equal measures of disbelief, an understanding of its quaintness, but ultimately characterised as sensible. The Act stipulated that a locomotive (ie, a vehicle) in motion on a turnpike was to be preceded on foot by one of its crew. They had to display a red flag and be ahead by not less than 60 yards, to warn drivers of the approach, as well as to assist passing horses and carriages.
Fast forward to the present day and the heavy caution exercised with the emerging motor car is being replicated with drones. The advent of the drone for civilian and commercial use is one of those leaps in personal transportation developments akin to the invention of the wheel.
With both perceived and actual threats to commercial aviation, it is no surprise that aviation regulators fear the worst. Never before has it been possible for anyone and everyone to gain such easy access to aviation. Whereas the internet offered a single means of generally safe access to information, public, commercial and civilian drone use offers the means to new sources of information, new means of delivery, and a host of physical attributes, some of which have yet to be realised.
The use of civil aircraft in the UK, which includes drones, is subject to the Air Navigation Order 2009 (ANO 2009), as amended by the Air Navigation Order 2016 (ANO 2016), and the Rules of the Air Regulations 2015 (the regulations) which came into force on 30 April 2015.
Practitioners and courts must have regard to these regulations when dealing with accidents and misuse of drones causing personal injury or material damage; police and local authorities too, in acting on privacy and nuisance concerns. Equally, they form the backdrop for commercial agreements for the wide exploitation of drone technologies. For the moment they are, like the Red Flag Act, highly restrictive, but one day the dream of a liberal and safe regime might come true.
The regulator on the use of unmanned aerial vehicles (UAVs) for commercial purposes is the Civil Aviation Authority (CAA). It promulgates and enforces applicable regulations and standards and provides operating permissions to pilots. The CAA is likely to be closely involved in ensuring the success of the drone sector as a whole, through the grant of the necessary aerial works permissions to test technology, which will be used in distribution of goods (the largest potential use), surveying and surveillance. This in turn will enable the CAA to relax the current restriction that all drones be flown within visual line of sight, which will allow the sector to expand commercially.
The CAA’s purview is maintaining standards of a regulated activity. However, demand is likely to exceed the CAA’s resources to monitor use nationwide. Without a culture of self-reporting (that is observed routinely in commercial aviation), it seems more likely that the lead on restricting use or punishing misuse will be taken by police authorities, the CPS, and local authorities. The police have already taken the initiative, and this has led to the prosecution of individuals over reckless use causing or threatening damage or personal injury to the public (eg, flying over crowds at football matches and the Shard in London). Meanwhile, local authorities have perhaps not fully recognised their opportunity, or responsibility (depending on how you view it) to limit use of drones in public areas. That may result in a dispute about their statutory power to do so, in light of the CAA’s established role.
Another authority which has become directly involved is the Information Commissioner’s Office (ICO). Drones put eyes-in-the-sky, a facility which will herald a significant increase in professional surveillance, photojournalism, and curiosity-driven amateurs. Video involves data, and data can identify a person. Indeed, there is a working proposition that posting video to a social network is a commercial activity and therefore will involve controlled data. The ICO has adapted its guidance to deal with camera-enabled drones. Data should be appropriately protected against interception by using an encrypted wireless communication link. Using an encrypted wireless communication link may also give some protection against potential hijacking of the vehicle. It has also tied good data practice with ANO 2009; best practice will include flying remotely piloted aircraft systems (RPAS) within line of sight, retaining a log of usage, copying data to a secure location and securely destroying data on the device as soon as practical.
Data subjects will mainly be private individuals, which, together with landowners, businesses (large and small) and others, form a cadre that will have the inclination to limit interference from overhead. Collectively, they are most likely to raise the widest variety of legal concerns that will be of interest to the public. This is because what is most problematic is how the permission to fly will be reconciled with rights of privacy, the law of nuisance, the law of trespass, various common law rights and duties such as confidence, the right to trade, theft of information, criminal law generally, and regulated activities such as intellectual property, and data protection.
The conflict between the right to privacy and the disclosure in the public interest is well known. Use of drones will somehow have to fit into that matrix. Nuisance is close to privacy but involves the enjoyment of life and land. Confidence usually requires an agreement or expectation not to disclose information, but it could be implied in a wide range of situations. There will undoubtedly be instances when people with a reputation to maintain or protect, or businesses who own data and intellectual property, will seek to prevent drones flying over their properties. Angry neighbours shooting drones down is not uncommon. These are matters that will, invariably, be left to the courts to sort out in the coming years.
The insurance industry will play an important part in the success of this emerging technology by providing adequate and cost-effective insurance to drone manufactures and users. Last year, Lloyd’s published a report which concluded that drone manufactures and users could face increasingly complex and high value risk exposures as the market continues to grow.
ANO 2016 is arguably restrictive, but in future, regulation is likely to be even more complex, and tiered, depending upon whether use is recreational, commercial or industrial. Progress depends upon technological advancement, particularly geo-spacing – to prevent drones from flying over land or near installations – and collision avoidance, based upon the time honoured aviation principle of self-separation. Once those are in place, then the sky is the limit.
Contributors Joseph Dalby and Ruhi Sethi are barristers at 4-5 Gray’s Inn Square.