Update: key legal issues relating to the use of drones

This latest practice note covers:

• Drones—the basics
• The regulatory framework—International, European and UK
• Classification of drones under the Retained Implementing Regulation and the Retained Delegated Regulation
• Key provisions of the Air Navigation Order (ANO) and Retained Implementing Regulation
• The Drone Code
• Criminal liability
• Civil liability under the Civil Aviation Act
• Trespass
• Right to impound a chattel
• Nuisance
• Bylaws
• Negligence
• Harassment and stalking
• Privacy and data protection
• Insurance
• Cybersecurity
• Regulating the design and manufacture of UAS

Drones (or other unmanned aircraft) are generally divided into three broad categories. The largest unmanned aircraft, including those intended for passenger-carrying operations or long-range military applications are treated in the same way as manned aircraft. They are, therefore, subject to extensive regulation, including platform certification and registration, pilot licensing and operational procedures akin to conventional aviation operations. This category of drone is not covered in this Practice Note.

Unmanned aircraft operations that do not meet traditional certification requirements, but can be demonstrated to be safe, fall into the second category. Most aviation regulators have long had the power, and in some instances the duty, to approve this category of aviation operations through a permit to fly system or through powers to exempt the operator from certain requirements of aeronautical regulation. Frequently those permits or exemptions are subject to platform-specific conditions or limitations that are unique to the operation in question, by reference to the risk posed to third parties.

In the third category sit lightweight drones, operating at low level, within line of sight of the operator (or remote pilot), and away from congested or urban areas. Typically, as long as they remain within these defined parameters, these operations will be exempt from most regular aeronautical regulatory requirements, such as registration, licensing and certification (although some commercial operations require approval).

These three general categories are reflected in the regime which is now applicable across all European Union Aviation Safety Agency (EASA) Member States, as well as the UK.

The UK used to have a small unmanned aircraft (SUA) regime for which the upper weight limit was 20 kg. From 31 December 2020, when Commission Implementing Regulation (EU) 2019/947 became applicable, the threshold between SUA and larger drones moved to 25 kg to align with EU regulation.

Aviation regulation in the UK has been subject to EU regulation for several years. Current UK drone regulation derives almost entirely from the EU regulations (see below). These formed part of the acquis of EU retained law which became part of UK law at the end of the Brexit transition period. This Practice Note therefore sets out the international, EU and UK aviation regulatory structures, as well as the historical and current form of EU and UK drone regulation.

This Practice Note does not consider privacy or data protection issues arising in relation to drones. For more information on these, see Practice Note: Drones—privacy and data protection and for an example agreement between a drone operator and a customer, see Precedent: Drone services agreement.

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Reproduced from LexisNexis with the kind permission of the publishers. For further information, visit www.lexisnexis.com.