Drone technology offers great potential, but is the regulatory framework keeping up?

The House of Lords EU Committee has called for a register of drone owners, a database comprising businesses and professional users which would later expand to include consumers as well. This register would enable the public to access information relating to drone flights. But do regulations relating to the use of drones extend far enough?

While fragmented, current laws are broad and adaptable such that they are able to deal with issues that might arise with drone usage. These issues include the unlawful collection of personal data without consent - recording the activities of a neighbour for instance – which falls under the jurisdiction of the Data Protection Act and so needs to comply with existing data protection principles. It is similar to being recorded on a surveillance camera and the Information Commissioner's Office code of practice for the use of such cameras already provides specific guidance on drones. Existing laws of nuisance, injury, trespass and copyright would also be relevant.

There will clearly be an increasing need to adapt legislation to cater for disruptive technologies and develop alongside changing trends. For example, the Civil Aviation Authority (CAA) would need to set the rules in its air navigation order to determine what happens in worst case scenarios -  in the event of an accident, who might be liable to fault or negligence? The person who set the predetermined drone flight path or the manufacturer of the drone?

However, to enact legislation in anticipation of, and prior to, these developments might be premature at best. There is therefore a need for the law to be somewhat flexible to accommodate these developments as opposed to leading them. There is also a need for a risk-based proportional approach insomuch that any drone standards set by the CAA need to reflect the purpose of drone ownership/use, the location of drone flights and the specifications of the kit.

Perhaps of greater concern is the ability to police the movement and use of drones. While the register would, in part, make this easier, it does rely on the premise that drone users will comply. To actively monitor use, it would be more useful to fit drones with GPS trackers to monitor activities which will allow the authorities to retrieve evidence when needed but again this would raise privacy and data protection issues.

What is clear is that drones, as well as accidents and unintended malfunctioning, are going to become more prevalent. The English legal system has been quite adaptable and has, in the past, amended regulations through case law and testing. Over-regulation might stifle the drone industry which is predicted to be responsible for creating up to 150,000 jobs across Europe come 2050 and what a shame that would be.

☛ Nicole Livesey is senior associate at law firm Pinsent Masons

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