Alan McKenna looks at the wider potential legal impact of proliferating drone use
Lachlan Urquhart's recent article, The Aerial Gaze: Regulating Domestic Drones in the UK, published in the April/May edition of C&L, provided an excellent overview of the growing privacy concerns related to the increasingly widespread use of so-called drones, or UAS's (unmanned aerial systems). The tragedy in the United States, in which 19-year-old Roman Pirozek was killed whilst he performed aerial stunts with a remote controlled helicopter weighing less than three kilos, highlights that there are potentially much wider concerns surrounding drone use than just those related to their potential for surveillance activities. Following Roman Pirozek's tragic death, it is therefore of interest to consider some of the wider potential legal implications relating to drone use, and the applicable regulatory provisions currently available to address such concerns.
In his article, Lachlan Urquhart discusses the key role played by the Civil Aviation Authority (CAA) as regulator of drone use in UK airspace, and the specific regulatory provisions that provide for when drones may be flown. It is likely that any growing domestic use of drones will prove highly challenging for the CAA as a regulatory organisation, as clearly their resources to supervise and control drone use in the UK are finite. Therefore, whilst the CAA will remain in most instances the first port of call where individuals have been adversely affected by drone activity, some parties may in future find the need to bring their own legal actions.
So what is the current picture in the UK regarding complaints over the use of drones? To date the only available information in this regard comes from a response given by the CAA to a freedom of information request made in July 2012. The requester asked in respect of both Commercial FPV/UAV (First Person View/ Unmanned Aerial Vehicle) and Hobbyist FPV/UAV fliers, how many fliers had over the previous five years been investigated for breach of CAA rules, and how many had indeed actually been prosecuted for breach of such rules. The requester further asked how many fliers had been convicted and the range of penalties given. In their response, the CAA pointed out that changes to the legislation in this area had been introduced by the Air Navigation Order 2009 (ANO) which requires operators of small unmanned aircraft to obtain CAA permission when such aircraft were being used for aerial and surveillance purposes, and that unmanned aircraft having a mass of less than seven kilograms were now also covered so as to protect public safety, depending on how the flight was being conducted and the potential risks to other parties. Due to the regulatory changes brought about by the ANO, the information held by the CAA only related to the last three years. In that time they had investigated just four cases, with no breach of the ANO being found to have occurred in any of the cases, all of which were subsequently closed. Of these four cases, one related to aerial work, and the other three concerned hobbyist fliers.
Besides making a complaint to the CAA then we may question what other legal possibilities exist for those affected by drone use? Naturally of course this will depend upon the type of harm that is alleged to have occurred or continuing to occur. The tragic example of Roman Pirozek highlights the obvious risk of personal physical injury from drone use. If someone were to be hit by a drone operated by another, then in order to be able to bring a claim in the tort of negligence the claimant would first need to show that they had sustained an injury that was considered in the eyes of the law as more than merely de minimis. In addition to this requirement of actionable harm, the other elements a claimant would need to establish in order for there to be a successful negligence claim involve showing that a duty of care was owed by the party operating the drone, and there was a breach of that duty, and the breach was the cause of the injury suffered. Arguably, establishing that a duty of care is owed is unlikely to be problematic, with any potential difficulty likely to lie in establishing breach of the duty, and that such breach was the cause of the injury suffered to the claimant. Outside of a situation where a drone operator fails to use due care, when negligence should be established straightforwardly, there arise interesting possibilities where fault may lie elsewhere. Being a piece of machinery, sudden mechanical failure is always a possibility, and fault may lie with the manufacturer. But we may also consider another possibility, and that is that the systems used to fly drones must be seen as potentially vulnerable to being hacked, with the consequence that the control of the drone is taken over by the hacker. In such a situation whether an 'innocent' drone operator is able to fully avoid liability where injury occurs may, for example, come down to them being able to show that they had taken all reasonable precautions. I envisage that taking all reasonable precautions would involve ensuring that the drone system was protected by the use of strong encryption software with a view to preventing hacking.
Aside from the position where physical harm may occur from drone use, there exist situations where no actual physical harm is needed in order to bring a potential claim over drone use. One such type of claim concerns trespass onto another's property. However, where drones do not actually physically touch someone's property by actually landing on it, and merely fly above such property, the question is whether an action for trespass could still be brought? In answering this question it is useful to look at the case of Bernstein v Skyviews  QB 479, which concerned whether a small aeroplane which flew over a claimant's private estate seeking to take photographs of that property for commercial purposes could be considered to have actually trespassed upon the estate owner's property. Ultimately, no trespass was held to have taken place as, whilst there was no requirement that the trespass actually involved the physical touching of the claimant's land, with a trespass potentially occurring in the airspace above the owner's land, a landowner's rights are not unrestricted, and in order to successfully claim trespass in such a situation it would need to be shown that the aircraft flying over the property had affected the owner's ordinary use and enjoyment of his or her property. Most drones would clearly be flying at heights at which it will be far easier to establish that they do indeed affect the use and enjoyment of property. One important caveat is that only a person who has a legal interest in the land or exclusive possession of it would be able to bring such an action. Therefore, those not possessing such an interest in the land would need to look for possible alternative forms of action if they believe they have been negatively affected by drone use.
One such alternative is to seek to argue that a nuisance is occurring. In the vast majority of cases where there is an alleged nuisance it will be dealt with by local councils using their statutory powers provided under the Environmental Protection Act 1990. Section 79 of the Act places local authorities under a duty to investigate complaints where they are made by those living within the local area, and it also details the types of situation which may be considered as a statutory nuisance. In regards to drone use the most likely categories under which a statutory nuisance may occur can be seen as coming under subsections (g) and (ga). Subsection (g) provides for 'noise emitted from premises so as to be prejudicial to health or a nuisance'; and subsection (ga) provides for 'noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street.' The Act defines what may be prejudicial to health as something which is 'injurious, or likely to cause injury, to health.' Much may depend on how a drone is being flown, but obviously there are clear physical dangers from drones. As regards defining nuisance, the 1990 Act is silent on this, and consequently reference to the common law should be made.
The English common law provides for two forms of nuisance – private and public nuisance. In order to bring a private nuisance action a person must show that there has been substantial and unreasonable interference with his or her use and enjoyment of his or her land. (Note that, as with trespass, a private nuisance action is possible only where the person bringing the claim owns or has exclusive possession of the land). In considering whether there has been a nuisance, the English courts use the test of the reasonable user of land and, in assessing whether there has been unreasonable use of the land, a court will look at (i) the nature of the locality in which the nuisance is said to have taken place; (ii) the duration and timing of the alleged nuisance; (iii) the utility value of the activity in question; (iv) whether the claimant may be considered abnormally sensitive; and (v) whether there was shown to be any malice on the part of the alleged perpetrator of the nuisance. In contrast to a private nuisance, for there to be seen to be a public nuisance, the nuisance in question needs to affect a wider number of people in the locality.
A further type of possible claim that possesses some similarities to a nuisance action, but is itself unrelated to the use of land, and could clearly be visualised in the context of drone use, is that of harassment. Protection against harassment in the UK has a statutory basis provided under the Protection from Harassment Act 1997. In order for harassment to be found to have occurred under the Act there must be a course of conduct (in other words more than one occurrence) which amounts to the harassment of another person, and the alleged harasser must know that his or her conduct amounts to harassment. Under the 1997 Act, harassment is both a civil and criminal wrong. I have not touched on the potential criminal aspects of drone use, but unquestionably there are likely to be a number.
While privacy violations are most likely to remain the prime issue of concern where camera bearing drones are being used, at least in the short term, it is valuable to take a look at the wider possible legal picture, especially with the likely growth in drone use. With growing usage, especially domestically, calls for greater control over drones are likely to develop. As in many situations where the Government is keen to be seen as tackling 'problematic' issues, whether new regulatory provisions are the answer can sometimes be questioned, with effective enforcement generally being the more appropriate and realistic solution. However, it is most unlikely that the UK Government will feel the need to take quite so drastic a measure as has recently been reported from the United States, where the town of Deer Trail in Colorado is said to be considering issuing licences to local residents that would allow them to shoot down drones in response to their growing surveillance concerns. The proposed $25 licence would enable residents to claim a $100 bounty for every downed drone they bring in! Clearly such a self-remedy, however bad the impact of drones may become, will be a non-starter in the UK, and overt downing of drones will just have to remain confined to the virtual world of gaming enthusiasts.
Alan McKenna is an associate law lecturer at the University of Kent. He is the author of 'A Human Right to Participate in the Information Society' and writes the Almacblog blog: [email protected].
There is drone-focused SCL event on 28 November with contributions from Peter Lee and Lachlan Urquhart– get full details here