Drones: a bird's eye view of the law

In the digital world, it is now very common for businesses to use drones to film special events, such as concerts and football matches.  However, companies must ensure that these drones are used safely, and in particular, that the remote pilot operating the drone is competent. This article outlines the actions businesses must take before a drone is used for filming special events, together with the obligations on businesses under health and safety law. There may well be other legal considerations to take into account – such as privacy laws – which are beyond the scope of this article.

Regulation, Permission and Registration

In England, the use of drones is governed by the Air Navigation Order 2016 (ANO). The ANO is regulated by the Civil Aviation Authority (CAA).

Businesses intending to fly drones over congested areas or open-air assemblies of more than 1,000 people, will need to obtain special permission from the CAA to fly the drone. This is referred to as a "Non-Standard Permission". 

However, most drones used for filming purposes are categorised as small, unmanned aircraft (SUA), as they are under 20kg. SUAs are exempt from most of the regulatory framework under the ANO, and instead are subject to a much lighter regulatory regime.

Since 30 November 2019, businesses who use drones must register he identity of the SUA operator, and show that this person is competent for any SUAs over 250 grams without fuel.  An 'operator'' is the person legally accountable for operating the SUA in a safe manner.  This includes maintaining the SUA, deciding when and where it will be flown and who can fly it – a 'remote pilot'.  The 'remote pilot' is an individual who operates the SUA manually or, if the flight course is automatic, is able to intervene/ change the SUA's course. The operator determines the framework within which the SUA can be operated and the remote pilot operates the SUA within that framework.

A remote pilot must pass a competency test to obtain a flyer ID. However, remote pilots who are flying in accordance with a Non-Standard Permission are exempt from taking the online education training and test (as they will undergo a competency assessment as part of the permission process).

Health & Safety

Employer's Obligations 

Businesses flying drones will also have obligations under the Health and Safety at Work Act 1974 (HSWA) to ensure that their employees and non-employees (e.g. audience members, contractors etc.) are safe. Businesses must therefore ensure:
 

• The drone operates safely and is in good working condition and well-maintained, and that a competent individual carries out any repairs/maintenance.
• The person operating the drone (i.e. the remote pilot) is competent and given adequate information to operate the drone safely. Practically, the fact that the remote pilot must have undergone a competency test in order for the businesses to obtain permission from the CAA should mean that this requirement is fulfilled.

There is also a requirement under the ANO that the remote pilot may only fly the aircraft if reasonably satisfied that the flight can be made safely and that the remote pilot of a small unmanned aircraft must maintain direct, unaided visual contact with the aircraft sufficient to monitor its flight path in relation to other aircraft, persons, vehicles, vessels and structures for the purpose of avoiding collisions
 
Breach of HSWA

If an incident were to occur involving the operation of a drone, a business may be in breach of the HSWA, which may lead to the Health and Safety Executive (HSE), the regulator for health and safety in the UK, conducting an investigation into the business. However, there are a number of regulatory agencies that may have primacy in any investigation including the CAA, the Air Accidents Investigation Branch (AAIB) and the police, who may also be involved depending on the incident concerned.

There is a memorandum of understanding which exists between the CAA and the HSE whereby each agency sets out their respective roles along with the ways they would collaborate. The HSE would be the enforcing authority in the following scenarios:
 

• all drone activities on the ground which are not directly related to the aircraft itself when it is about to fly and until it is powered down;
• during the on-site setup and preparatory activities for the drone before flight; and/or
• any post-flight activities.

The HSE would not have enforcing authority during the flight activitiesand these would be regulated by the CAA and AAIB.

Where a corporate entity breaches the HSWA, and such a breach could be attributed to a director, manager, secretary, etc. of the entity, that person as well as the corporate entity could be liable to prosecution and/or an unlimited fine.

Criminal Damage

If the drone causes damage to another person's property, it is possible that the offence of criminal damage is committed (s.1 of the Criminal Damage Act).

A criminal damage offence is referred to as an 'either way' offence meaning that it can be tried in either the Magistrates' Court or the Crown Court. However, if the damage to property constitutes less than £5,000, it will only be dealt with in the Magistrates' Court. The police may also become involved if the drone is being used dangerously or otherwise would constitute a nuisance even if no damage to property took place.

Conclusion

Drones are a useful technology for businesses filming special events and performances with large audiences. The CAA's permission and pilot competency requirements align with health and safety legislation, leading to businesses operating drones against the backdrop of a number of regulatory regimes. Therefore, it is important that businesses are aware of their obligations to keep both their employees and visitors safe when using drone technology and that the correct policies and procedures are followed to ensure that they do not fall foul of the regulatory frameworks.