Analysis by Gabriella ATKINS
The ownership of unmanned aerial vehicles (UAVs), or drones, is burgeoning at an unprecedented rate. Traditionally limited to military usage, dropping costs and increased production means drones are becoming within the reach of a significant proportion of the population. In the run-up to Christmas 2015 it was estimated 400,000 drones were going to be purchased in the US. As a result, the law is desperately trying to assert control over this new form of technology.
On 21st December 2015, all recreational UAVs in the US became subject to mandatory registration and 45,000 people responded by registering their UAVS in the first few days. The Federal Aviation Administration’s directive reflects similar requirements outlined by the Civil Aviation Authority (CAA) in the UK. Currently in the UK, you can fly a drone outside if it weighs less than 20kg, you are not flying for commercial reasons and if you stay 150m away from congested areas and 50m away from a person, vessel, vehicle or structure. Whilst these superficially seem easy to abide by, the reality is recreational drones would have to be flown in deserted areas, free from the risk of any person or vehicle passing.
The FAA directive makes it an offence for anyone to fly a UAV above 400ft and within five miles of an airport. UAVs must also be kept within sight at all times. These measures reflect the FAA’s attempt to restrict potential accidents that could arise from the 1.6 million recreational drones estimated to be flying around.
So what legal problems do UAV’s pose and what are the implications of the FAA and CAA’s relative measures?
Use of airspace.
This is a point of fundamental importance for the authorities. Around 100 reports a month are arising of drones interfering with regular air traffic. Whilst no incidents have yet occurred, one only has to look to the disruption of bird strikes to gain an idea for what might happen. A collision with a flock of Canadian geese in 2009 caused a flight to suffer a loss of power after take-off. Indeed there have been incidents in California of helicopters being prevented from fighting wildfires because UAVs have been capturing footage. Whilst drone manufacturers are coming up with new ideas for technologies which would detect aircraft disturbances and enact an avoidance programme, currently recreational drones offer the ability to fly autonomously. They do not require the same skill that traditional recreation aircraft demand and can easily continue flying until their batteries run dry.
The FAA’s directive is of significance to retailers who are looking into the potential of drones for delivery. In order for these plans to materialise, UAVs will need to fly above the 400ft boundary and be able to fly out of the operator’s line of sight. In July 2015, Amazon presented plans for a system of segregated air zones, ‘a multi-tiered superhighway in the sky’, in which any UAVs flying above 200ft would have the ability to communicate with each other to avoid collisions. There would even be a buffer zone from 400-500ft to help reduce collision risks. Amazon argues that its plans represent a common, coherent goal which UAV manufacturers and producers can aim for. They argue everyone with the correct equipment should have access to the airspace.
UAVs have the potential to cause serious injury. On a basic level, a drone falling onto a person, as almost happened to Marcel Hirscher at the Madonna ski race in Italy, could cause death or serious injury. Whilst liability for UAV usage theoretically lies with the operator, other factors as diverse as manufacturing faults and third party acts such as leasers or hackers will have to be taken into consideration. To expand further, if a company delivery drone collided with a commercial aircraft, who would be at fault? The drone operator for flying out of sight, too close to an airport or in commercial airspace? The manufacturer for a possible technology fault which caused the UAV to lose control or fail to avoid the airport? The delivery company as employer of the operator by vicarious liability? The UAV owner company who has leased the UAVs to the delivery company? The pilot of the aircraft for failing to notice or take evasive action? Air traffic control for failing to spot and notify the pilot of the drone? Or a hacker who has hacked and tampered with the UAV’s software? Suddenly, the law surrounding liability, both private and workplace, will have to be redrawn.
UAVs are commonly used for filming or photographing, both commercially and recreationally. However, users must be aware of potential privacy intrusions and breaches of CCTV law. This was recently highlighted by a Court of Justice of the European Union case regarding a Czech journalist’s use of a drone for CCTV purposes outside his house. František Ryneš installed a CCTV camera outside his home to film the entrance to his house, the public footpath and the house opposite. The CJEU upheld that the recording infringed Czech data protection law, even though it assisted with identification of two suspected criminals. Users of UAVs will therefore have to be careful that they do not film other people in a public space, which would go beyond the allowance of filming for private purposes.
The laws surrounding UAVs and their commercial and private use are constantly evolving but it is still an area of great unknown. Governments are going to have to carefully consider the potential ramifications of UAVs soon. Great numbers of UAVs are already in private and commercial circulation and technology developments are continually driving down prices which represents a vast potential market for consumers. However, users must also be aware of the potential infringements they might unknowingly perpetrate, and potentially take out insurance against causing injury or infringing data protection. Technology is going to continue developing, meaning UAVs are not going to quietly disappear. Within a decade we could very well see the emergence of a full-scale drone delivery service.