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19 December 2016

First EU-wide rules for drone safety approaching

Drones have moved into the mainstream in recent years, and the rise in their popularity is sure to accelerate in the near future. These devices are expected to gain a greater foothold in the consumer market, while also becoming standard equipment for a range of organisations, especially those whose business revolves around functions suited to the capabilities of drones. They are already being used for the likes of capturing media footage, improving security of premises and making deliveries, but many more applications are on the horizon, such as:

  • mapping and surveying for the construction and engineering sector;
  • spraying pesticides and monitoring livestock for the agriculture sector; and
  • expanding the reach of telecommunications networks, particularly in countries where the existing infrastructure is inadequate.

In anticipation of drone usage becoming significantly more widespread, the EU is making its first foray into safety legislation in this area. It was announced on 1 December that the European Council has approved a draft regulation produced by the European Parliament (the "Draft Regulation") which covers various areas relating to civil aviation, and one of these areas is "essential requirements for unmanned aircraft".

The EU's approach to regulating drones

The preamble to the Draft Regulation explains that the plan is to allow some leeway for individual member states to differ in the laws that apply to drones:

"In order to implement a risk-based approach and the principle of proportionality, a degree of flexibility should be provided for the Member States as regards unmanned aircraft operations, taking into account various local characteristics of Member States such as population density, while ensuring an adequate level of safety."

On that basis, the legislative structure envisaged here is that the Draft Regulation will impose a base level of compliance to observe, with principles couched in broader terms, and then more detailed rules will be implemented across the EU. Sometimes this will be done by local authorities or laws, and sometimes at the EU level. For the latter case, new powers will be granted to EASA (the European Aviation Safety Agency), who should be well-placed to steer changes in rules as technology moves along.

The Draft Regulation will mark a shift from the current position, whereby drones weighing less than 150kg were left for member states to regulate – this new regime will impose the same basic requirements on drones of all sizes.

Concerns highlighted in the Draft Regulation

Working through the sections of the Draft Regulation that focus on unmanned aircraft, the following requirements stand out:

  • As regards privacy and personal data, drones will need to have "features and functionalities" that ensure easy identification of the aircraft, along with the nature and the purpose of its operation. There must also be features and functionalities to ensure compliance with other applicable restrictions, such as no-fly zones, limits on altitudes for flying, and any conditions regarding the maximum distance permitted between operator and active drone.
  • Manufacturers must inform operators about the appropriate uses of their drones and how to operate the drones safely – limitations on airworthiness and emergency procedures are specifically mentioned here.Measures must be in place to cover scenarios where one or more systems fail so that the drones can still be safely controlled and manoeuvred.
  • Precautions should be taken to minimise the safety hazards which have arisen in the past, and "protection against interference by electronic means" (i.e. cyber security) is mentioned as a specific example.
  • If an organisation uses drones, that organisation should have systems in place for managing compliance with the Draft Regulation's requirements and for reporting any safety incidents.

Other legal considerations

Aside from the Draft Regulations, there are various other aspects of compliance with the law to bear in mind when using drones. The following examples focus on UK law:

  • If the drone has a camera or otherwise records information on its surroundings, there could be potential for breach of Article 8 of the European Convention of Human Rights, which deals with the right to respect for one's private life, or even for conduct classed as harassment. The Data Protection Act 1998 will also be relevant insofar as such activity would be likely to result in collecting personal data, and so this means addressing issues of consent for processing that data, declaring how the data will be used, making the operator of the drone easily identifiable, and so on.
  • The Civil Aviation Authority has implemented rules on drone usage which vary based on whether the context is recreational or commercial. These include specifications about keeping a drone within sight of the operator, limits on altitude and maintaining appropriate distances from third parties and their property.
  • If a drone accident results in injury or property damage, the torts of negligence and/or trespass to the person could apply, but depending on the circumstances it could be the operator, their employer or the manufacturer who is deemed liable. There could also be criminal liability falling on one or more of the parties involved. Organisations which use drones may be obliged to have liability insurance in place which specifically covers their drone operations.

This article was written by Sam Collingwood, Trainee Solicitor. For more information, please Sam on +44 (0)20 7427 6507 or sam.collingwood@crsblaw.com.

Alternatively, please contact Mark Bailey on +44 (0)20 7427 6519 or mark.bailey@crsblaw.com.  

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