The low-cost of buying and operating remotely piloted aircraft (drones) for agricultural use has opened up a world of opportunity. The technology, catapulted by developments in military drone use, has overtaken the current legal and regulatory framework, leaving significant gaps in knowledge and new risks to manage.
Drone users must ensure they comply with the existing regulatory regimes which apply to their use, and be aware of the likely developments. The regulatory world will catch up and drone pioneers must prepare for a legislation and by-law backlash.
Why are we using drones?
Drones are being used for wide and varied agricultural uses including photography, the surveillance of crops and livestock and geographic mapping.
The use of drones to map and collect more data (and, crucially for farming, more accurate data) is of great value to businesses. Innovative software houses are creating software packages which use the data captured to pinpoint pockets of diseased crops and accurately monitor hydration levels. The use of advanced, modern technology such as big data and GPS sensors can help to reduce their inputs and drive down cost, whilst maximising crop production and profitability at the same time.
There are also novel opportunities associated with the ever-increasing ability of drones to carry payloads. Various companies already offer pesticide-spraying drones which can cover 10 acres of farmland in an hour.
What are the legal issues?
More drones flying mean that the risk of collision is inevitably enhanced. Between March 2014 and March 2015 the UK Civil Aviation Authority (CAA) recorded six ‘near misses’ where a drone came within 20ft of an airliner. Globally a similar picture emerges.
The correct regulation of drones falls within the remit of the Civil Aviation Authority (CAA) in the UK, but the degree of regulation currently depends on the weight and use of the aircraft.
Drones weighing 20kg or less: these are classified as ‘Small Unmanned Aircraft’ (SUA) and are exempt from the majority of regulations that would normally apply to manned aircraft provided they are for domestic use.
The user must:
- Be able to maintain unaided visual contact with the SUA;
- Not fly in restricted airspace or at a height of over 400ft.
Where SUA’s are equipped with a camera (which is often the case with drones designed for agricultural use) regulations are tighter, they must not be flown over or within 150m of congested areas or assemblies of more than 1,000 persons or within 50m of vehicles, buildings, structures or persons.
Drones weighing over 20kg; these are subject to strict rules, equivalent to those for manned aircraft, unless an exemption applies, pilots of drones weighing over 20kg must:
- obtain a Certificate of Airworthiness;
- register the drone on the UK Register of Civil Aircraft;
- obtain flight permission from the CAA;
- obtain an approved pilot qualification.
Recklessly or negligently endangering an aircraft or any person in an aircraft is a criminal offence and The CAA has warned that pilots will face prosecution if they put the safety of other aircraft at risk. The first example of successful UK prosecution for drone offences was in 2014 when a man was fined for flying a drone fitted with a camera within 50m of Jubilee Bridge and within restricted airspace over a nuclear submarine facility.
Data protection and privacy
Existing data protection and privacy laws, as well as criminal laws in respect of harassment, are designed to protect citizens’ fundamental rights such as the right to privacy and the protection of personal data.
While any user has the potential to infringe data protection law, the Information Commissioners Office (ICO) focuses on ensuring that non-domestic drone users (as opposed to ‘hobbyists’) comply with data protection legislation. The ICO has adapted guidance on the use of CCTV to take into account drones that are fitted with a camera. Personal data (data that enables the identification of a living individual) collected by drones for commercial use must be processed fairly and lawfully in accordance with the Data Protection Act 1998 (DPA).
It is important that farmers are also generally aware that improper drone use may infringe privacy, breach confidentiality or even harass others. By way of an example, it is possible that footage identifying a neighbour or employee on part of the land within the scope of the drone’s camera may infringe that person’s right to privacy if published. The risk of infringing privacy is likely to be reduced if inclusion of footage of that person is only incidental.
The health and safety risks
The potential for drones to cause personal injury and damage to property is likely to be considered less significant when compared with the risks posed by manned aircraft, but with an increase in flights, health and safety risks (and the risk of negligence claims) should be considered. Clearly, the operator will have a responsibility for the health and safety of anyone on or near the land they are operating over.
Safety by design
As with aviation risks, manufacturers are also taking steps to improve drones from a health and safety perspective. Health and safety guidelines will require that drones and their packaging are accompanied with adequate warnings and user instructions. An automatic ‘Return to Home’ feature triggers the return of the drone and automatic landing where battery life reaches 10% is built into the latest quadcopter drones, meaning that drones should not be in a position where they drop out of the skies when power fails.
To take a further example, Geo-fencing is an on-board GPS and mapping system (also known as “cyber fences”) which prevents drones from flying into restricted airspace. There is a recognised need at the European Commission to encourage investment in technologies that are required to integrate drones into the aviation systems covering European airspace.
Regulation for the future?
Current UK regulation of drones under the specific civil aviation rules coupled with the application of existing privacy laws is relatively clear-cut, although there are uncertainties in the approach to enforcement of those laws, and how they will cope with the explosion of use. The civil aviation rules will surely develop and change. The launch of a US publication ‘Drone Law Journal’ gives us some indication of the growth in this ‘aerial legal minefield’.
The European Commission suggested that safety rules, including on remote pilot and operator qualifications, should be developed by the European Safety Agency and further that the requirements should be harmonised at a global level. The thrust of the declaration is to protect drone users and manufacturers from a complex web of new rules and regulations stunting the growth of the industry, while enhancing public confidence and safety.
Businesses that want to take advantage of the opportunities drones can bring, should work with their legal advisors to understand current legal requirements but also plan for the inevitable future legal developments. A new ‘Law of Drones’ is already on the horizon.