As we approach the coronation of King Charles III, Buckingham Palace has confirmed that a drone display will play a pivotal role in the celebrations, during the centrepiece of the coronation concert, titled ‘Lighting up the Nation’. This follows the success of a 400 drone performance at the late Queen’s Platinum Jubilee celebrations in 2022.
The prominence of this technology reflects the exponential growth in drone usage in the UK. A 2022 report estimated that by 2030, the UK skies could see more than 900,000 drone users, with the industry potentially contributing up to £45 billion to the economy.
Flying drones is fast becoming both a popular recreational hobby and an important business tool, with scope for huge potential in the commercial world. Recent developments include the unveiling of cargo drones for use in Formula 1, plans for a 165-mile drone superhighway and the NHS’s trial transportation of medication, blood samples and chemotherapy drugs by drone.
However, while it is exciting to watch this industry develop at such rapid pace, it is crucial to keep sight of the potential legal challenges this brings, and the importance of effective regulation and enforcement in order to steer the industry through the transition periods.
The Civil Aviation Authority (CAA), the UK’s regulator for all manned and unmanned aircraft, has issued a set of rules called The Drone and Model Aircraft Code which should be the starting point for any budding drone enthusiast. The code specifies various identification and registration requirements, dependent on a drone’s weight and category.
The code also sets out the key rules and regulations for flying, including for example, a requirement to fly under 400 feet and (when operating a drone over 500 grams) a requirement to keep 50 metres away from any person. In addition, drone users are responsible for keeping an eye on the latest no fly zones or flight restriction areas (most drone operators rely on apps for the latest information). Furthermore, as a general rule of thumb, a drone should always be flown within the operator’s direct line of sight, subject to certain exceptions.
The significance of this should not be underestimated. In 2021, Operation Foreverwing was launched by the Home Office, the police and the CAA to crack down on drone related crimes (and appears to be ongoing). The campaign permits law enforcement through fines and the confiscation of drone equipment, often costing in the thousands of pounds, for anyone deemed to be flying dangerously.
In order to avoid prosecution, fines, equipment confiscation, potential prison time and generally causing mass inconvenience to the public (see below), this article sets out some of the key things to avoid when embarking on a drone adventure.
It is the Football Safety Officers Association policy for football matches to be stopped when drones fly overhead due to the obvious safety concerns including the potential threat of terrorism, not to the mention the risk of illegal broadcasting.
In the 2015 case of R v Wilson (unreported), Mr Wilson was fined £1,800 for nine offences relating to the flying of a drone over and in the vicinity of Premier League football stadiums, as well as other landmark sites in London. Mr Wilson posted video footage online which alerted the police to this activity. At the time, operators of small unmanned surveillance aircraft were prohibited from flying anywhere over, or within 150 metres of, an organised open-air assembly of more than 1,000 people. In fact, the code now prohibits any flight over crowds of people without the necessary commercial licence and permission. This was the first case of an individual being prosecuted for illegal drone use following a police-led operation.
There have since been further incidents of interference in football games. In January 2023, the Premier League game between Southampton and Aston Villa was briefly paused due to a drone flying above St Mary’s Stadium. The referee stopped the match in the forty-second minute, requesting that both teams return to their dressing rooms, before allowing the game to continue 10 minutes later. Last season’s match between Brentford and Wolverhampton was similarly delayed.
The sighting of two drones near Gatwick Airport in December 2018 caused nothing short of chaos over the Christmas period, leading to the closure of the airport for 30 hours and disruption to 1,000 flights. Perhaps uncoincidentally, the code, subsequently published in 2019, explicitly prohibits drones from flying anywhere near airports.
Nevertheless, in November 2022, reported sightings of drones near Glasgow Airport forced the police to warn of the ‘potentially catastrophic’ consequences of flying drones near airports, and the CAA to issue a statement that: ‘Drones can be great fun but people must fly them safely and follow the rules. Breaking the [code] and failing to fly responsibly could result in criminal prosecution, including imprisonment.’
Local council sites
There has been a recent increase in drone users, both recreational and commercial, receiving community protection notices (CPNs) for flying drones in local communities. CPNs were introduced by the Antisocial Behaviour, Crime and Policing Act 2014 and are used to prevent conduct which has a detrimental effect on the quality of life of those in the locality. Although not the original purpose of this legislation, there has been a surge in CPNs being used to prevent drone use in public spaces.
In many UK boroughs, drones may not be flown from, or above, any council owned or managed land (eg parks or car parks) without prior permission from the council, however it is important to add that this is area specific. Before a CPN can be imposed however, a written warning must first be issued, which can be appealed. Failure to heed the written warning may lead to hefty fines of up to £5,000 per individual and £20,000 per corporate entity or body. Legal advice at the time of receipt may therefore be prudent.
It was reported in 2016 that Queen Elizabeth II had banned drones from flying near or over Sandringham castle, in an attempt to mitigate the risk of terrorist attacks and to protect her family’s privacy.
In 2022, the CAA announced a ban on drone flights over central London during the period surrounding Her Majesty’s funeral. The announcement followed the decision of the Secretary of State for Transport to enforce an outright ban, citing national security as the primary concern. This demonstrates the importance of keeping up to date with the CAA’s announcements, particularly in relation to no-fly zones.
On a positive note, specialist wildlife drones are helping to protect endangered bird species, such as the Kakapo bird in New Zealand, by allowing scientists monitor the species in a ‘less intensive and less invasive’ manner. Whilst it is encouraging to see technology play a key role in the protection of endangered wildlife, it is important to specify that these are special drones (operated by specialists).
However, a 2022 report based on a conservationist project at St Mary’s Island in Northumbria illustrates that drones are also quite capable of disturbing resting birds. Despite a no-fly zone being in operation, amateur drones caused devastation when flown over the nature reserve, causing 150 or so resting golden plover birds to fly away from the island. The local wildlife conservation society has urged members of the public to keep drones away from these protected areas.
In March 2023, a drone pilot pleaded guilty to endangering the safety of an historic Second World War Hurricane aircraft. The incident took place on 9 July 2022 during a RAF flypast over Derbyshire’s Buxton Carnival. The flypast was protected by a short-term airspace restriction banning all other flights in the area (including drones), and a notice to airmen (formerly known as a NOTAM) had been issued to warn of the flypast.
Nonetheless, a drone was detected by a local photographer who notified the CAA and the police. The drone pilot was fined £3,000, and was ordered to pay costs of £450 and a victim surcharge of £154, as well as receiving a six-month suspended prison sentence – a rather expensive day out.
Nuclear installation and testing centres
Given the obvious dangers, it is hardly surprising that the CAA will come down heavily on anyone flying a drone near nuclear facilities. In the 2014 case of CAA v Knowles (unreported), the defendant was fined £800 and ordered to pay legal costs of £3,500 after pleading guilty to flying a small, unmanned surveillance aircraft within 50 metres of a structure and over a nuclear installation.
In October of last year, the filming of Netflix’s beloved series The Crown was reportedly halted for two days after amateur drones circled the set in Hull city centre. It was reported that the drones not only caused delay and frustration amongst the cast and crew but also flew dangerously close to the production camera cranes being used, and therefore potentially jeopardised the filming of the series long term.
This is a further reminder of the disruption and inconvenience that drones can cause if not operated sensibly and legally. Moreover, drone pilots causing such nuisance could conceivably find themselves at the sharp end of civil proceedings, in addition to the risk of criminal prosecution.
Animal testing centres
In the case of MBR Acres Ltd v Free the MBR Beagles (former Stop Animal Cruelty Huntingdon) , the claimant successfully secured an injunction to prevent the defendant from entering any part of the land at the claimant’s site in Wyton.
However, when it came to the issue of drones flown over the site, Judge Nicklin was not satisfied that the balance of convenience favoured the grant of an injunction to prohibit it. The judge considered that this particular claim was ‘legally uncertain’, and no other cause of action against the drone use had been identified that could justify an injunction.
The judge found that there was no suggestion on the evidence that the flying of drones had caused harassment or risked causing danger or harm. This was partly due to the fact that the claimant and its staff were unaware of the drones, until they were later alerted to online footage. The judge observed that: ‘The question of whether the flying of a drone over a piece of land (and if so, at what height) is an actional trespass, appears surprisingly, to be one that the law has yet definitively to answer.’
However, he went on to opine that should there be a future case involving a claim in trespass relating to drone flight, an award of damages, not an injunction, would be an adequate remedy. As it stands, the issue at the time of writing has still not yet been determined definitively. In any event though, drone enthusiasts would be well advised not to test the limits.
Your neighbour’s garden?
Finally, the use of drones has raised all manner of questions regarding individual privacy and data protection rights. In 2016, the TV personality Richard Madeley confessed that he had researched whether you can shoot down a drone flying in your ‘personal’ space. To be clear, in the UK it is illegal to shoot down any unmanned aircraft flying over your property and you could be charged with endangering an aircraft in accordance with section 240 of the Air Navigation Order 2016.
Paragraph 20 of The Drone and Model Aircraft Code states that a drone user is likely to be breaking UK data protection law if a drone fitted with a camera or listening device is used where an individual can expect privacy, such as inside their home or garden. The code also advises that any photos or recordings taken may be governed by the General Data Protection Regulation (GDPR). The GDPR requires, amongst other things, that personal data is processed lawfully, fairly and in a transparent manner, and collected for specific and legitimate purposes.
In addition to the GDPR, the right to privacy and data protection is currently a recognised right in the Charter of Fundamental Rights of the EU and in the European Convention on Human Rights (ECHR).
The tort of misuse of private information could also potentially come into play in respect of photos and videos captured by drone, although to the best of our knowledge this has not yet been tested.
As it stands, there is friction between UK data protection and misuse of private information laws, and a drone user’s ability to operate their device without the need to either a) notify unrealistic numbers of individuals along a flight plan or b) avoid flying over private property in the UK. Specific legislative consideration will need to be given to this going forward. This could include bespoke privacy responsibilities tailored towards drones that are in line with the requirements of the GDPR, but which perhaps do not place the same impractical burden on drone operators.
The Information Commissioner’s Office (ICO) has in recent years published guidance to drone users. For example, it has recommended that recreational drone users (referred to as ‘hobbyists’) should consider carrying out robust data protection impact assessments (DPIAs) before flight and, depending on the circumstances, consider the need for devices with restricted fields of vision or which only record after reaching a certain altitude.
Following the appointment of a new UK Information Commissioner in 2022, the ICO has renewed its regulatory focus, and it is anticipated that this may lead to change in this area in the short term. This is perhaps particularly so in light of the Data Protection and Digital Information Bill that is currently before Parliament, which, amongst other things, is aiming to simplify certain parts of the UK data laws in order to be more user-friendly.
One thing is certain. In order to keep up with one of the fastest growing industries in the world, UK legislation and regulation needs to evolve at speed. Watch this space.
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