DRONES AND THE NEW LAW: Amendments to the Air Navigation Order

 
 
 
 
 
 
 
 

Drones and the law has been a popular topic for visitors to Prettys’ website since the first article on the subject was published back in 2015.

Since then, the article has been updated on a couple of occasions to take into account changes to the law, most recently in 2019.

This article considers some of the more substantial changes that have recently come into force with amendments to the underlying Air Navigation Order 2016. As part of this, many of the detailed rules concerning drones were moved to the snappily-named “Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft” (the “Unmanned Aircraft Regulation”).  This regulation originated from the EU and was retained when the UK left the EU.

The Unmanned Aircraft Regulation and changes to the Air Navigation Order

The key principles underlying the lawful flying of drones remain the same as they were prior to the changes to the Air Navigation Order:

  • You must only fly your drone if you are reasonably satisfied that the flight can be safely made.
  • You must maintain direct visual contact with your drone.
  • You must not fly your drone above 400 feet.
  • You must not fly your drone inside the “flight restriction zones” of airports. A map of these zones is available on the website of Dronesafe, which is sponsored by the Civil Aviation Authority (CAA).

Further, you must register any drones weighing 250 grams or more – and also, in a change to the rules, all drones (other than toys) with cameras – with the CAA before you fly them. Similarly, you must ensure that all pilots of drones weighing 250 grams or more are registered with the CAA after having passed a basic flying test.

The primary legal changes to rules about flying drones remove some of the more restrictive treatment of drones with cameras. Distinctions between drones are now instead largely linked to a drone’s weight.

Previously, drones that were fitted with cameras generally had to be flown 50 metres away from people not involved in the flight. Now, only drones weighing 250 grams or more must comply with this rule, regardless of whether they have a camera.

Separation from crowds has similarly been changed from distinguishing on the basis of whether the drone has a camera to distinguishing on the basis of weight.  Now, drones weighing 250 grams or more must be flown 50 metres horizontally away from groups of people whereas drones weighing less than 250 grams must only not be flown over groups of people.

There are also no longer any specific obligations to fly drones a certain distance away from property. Instead, the nearest replacement obligation is that drones over 250 grams must not be flown within 150 metres of “residential, industrial, recreational or commercial areas”.

Probably the most significant change, however, is for people who use drones for work rather than as a hobby.  Previously, drone operators needed to have permission from the CAA for “commercial operations”.  Now, merely using a drone for commercial purposes does not require any special permission. In practice, however, commercial drone operators may wish to operate in situations not allowed by the above general rules on drone flying, such as closer to people or in built-up areas. This will mean that they still need to obtain qualifications, such as the A2 Certificate of Competency, which allows a pilot to fly a drone in accordance with the more flexible “A2 open category” rules, or authorisation from the CAA to cover these aspects of their flight. Further, wherever they fly their drones, commercial operators will need to maintain third-party liability insurance, as has previously been the case.

General laws on flying a drone

Aside from the new rules in the Unmanned Aircraft Regulation and the amended Air Navigation Order, you should also consider the impact of general laws on flying a drone:

  • If you intentionally or recklessly hit someone with your drone, you could be liable for battery, which carries both criminal and civil sanctions.
  • If you intentionally or recklessly damage someone else’s property with your drone, you could be liable for criminal damage.
  • If you fly your drone without exercising a reasonable standard of care and injure someone or damage their property, you could be negligent and liable to compensate the victim for personal injury or damage to property.
  • If you fly your drone low over someone’s land without their permission, you could be liable in trespass, even if you do not personally go onto the land (although this is generally a civil rather than a criminal matter).

Further, as the CAA has recently highlighted, you should check for any local byelaws restricting the use of drones, such as at take-off or landing.

Data Protection

So far as data protection law is concerned, if your drone has a camera, you should consider the impact of the General Data Protection Regulation (GDPR) on the collection of footage using the device. The Information Commissioner’s Office guidance suggests that compliance with data protection law would include making it obvious that you are responsible for the drone and that the drone is capable of filming. The guidance also highlights the importance of ensuring that you only record in appropriate locations using the drone – for example, using the drone to film your neighbour’s back garden is obviously likely to infringe their privacy; doing so repeatedly could amount to the offence of harassment.

Concluding Comments

The changes to the law liberalise the rules for flying lighter drones and camera drones, and also remove some of the barriers to people flying drones for commercial purposes. There is a certain logic to these changes, with the rules now distinguishing more on the basis of weight, reflecting the greater risk that heavier drones could injure people if flown improperly.

There remains an accessible explanation of the law in the CAA’s official “Drone Code”. Behind the scenes, however, the volume of legislation specific to drones has swelled notably, with the Unmanned Aircraft Regulation alone some 13,000 words over 27 pages. (The provisions in the Air Navigation Order were under 3,000 words over 7 pages.) This, combined with a glance at the CAA’s detailed 238-page guidance on the use of drones, indicates that both the law and regulators are increasingly paying attention to the use of this technology.

Expert
Michael Booth
Associate