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Drones – the hidden risk

Tim-Johnson-4-USE

Drones are taking off in a big way and with Christmas fast approaching, sales are likely to increase further as children (‘big kids’ included!) look to get their hands on the latest must-have gadget. But beware – although insurance may not be required by law, many are unaware of the potential risks of these popular devices.

Whether it’s causing damage or injury, or invasion issues such as privacy and trespassing, drones may not be covered by conventional insurance policies. Tim Johnson, partner at law firm Browne Jacobson, outlines the issues and potential liabilities for those using drones at work or play. 

What is a ‘drone’?

A ‘drone’ is generally used to mean a small, remotely-operated, unmanned aircraft.  Drones weighing less than 20kg (which almost all commercial and private-use drones do), are called ‘Small unmanned aircrafts’ (“SUA”) for the purposes of the Air Navigation Order 2009, the principal legislation governing the use of aerial devices within the UK.

What are the legal obligations?

Registration and insurance: There is no legal requirement to register or insure an SUA.  However, although insurance is not required by law, for the reasons set out in the balance of this article, all drone users and owners would be advised to take out suitable insurance.

Visual contact: Pursuant to Article 166(3), a person operating a SUA must “maintain direct, unaided visual contact with the aircraft sufficient.…for the purpose of avoiding collisions.”

Airspace restrictions: SUAs weighing over 7kg (which some commercial drones do), cannot be flown in certain airspace without the permission of aircraft control or (unless flying in restricted airspace with permission) at a height of more than 400 feet above the surface.

The commercial use of drones – potential liabilities

The commercial use of drones is increasingly common, particularly in the media and film industry or where aerial imagery is required.  In our experience, many users are unaware of the legal requirements for using a drone for commercial gain.

An SUA must not be flown for consideration (known as ‘aerial work’) unless the person controlling it is authorised by the CAA.  Recently published figures show that the number of licences is considerably lower than the number of organisations using drones for aerial work.

Injury and property damage

The most obvious risk arising from drone use is the risk of causing injury or damage.  One might expect such risks to be covered by a public liability policy, but many such policies exclude liability arising from the use of ‘aircraft’ or ‘aerial devices’.  Depending upon how those terms are defined (if at all), policyholders may find their use of a drone is excluded from cover.

Privacy and confidentiality

Many drones have the capability of recording images, video and sound (in many cases, this is their primary function).  This gives rise to a potential confidentiality and privacy exposure that users may not have considered.

If an SUA is “equipped to undertake any form of surveillance or data acquisition” it becomes a Small Unmanned Surveillance Aircraft (“SUSA”). A SUSA must not, without CAA permission, be flown:

•        within 150 metres of any ‘congested area’ (any area which is substantially used for residential, industrial, commercial or recreational purposes);

•        within 150 metres of an organised open-air assembly of more than 1,000 persons;

•        within 50 metres of any vessel, vehicle or structure which is not under the control of the person in charge of the aircraft; or

•        within 50 metres of any person, excluding the operator (30 metres for take-off/landing).

Anyone contravening these regulations is liable to a fine of up to £2,500.  Equally, insofar as the ‘surveillance equipment’ captures any private or confidential image, the user faces potential claims for breach of privacy or confidentiality.

Furthermore, the use of SUSAs opens up the possibility of investigation from the Information Commissioner.  The Data Protection Act 1998 prohibits the processing (including obtaining, recording or holding) of personal data (data from which an individual can be identified) without the subject’s consent.   Contravention of data protection principles could lead to a further fine upon the drone user.

It is also a criminal offence to process data without being registered with the ICO.  Where the offence is committed by a corporate body, any consenting, conniving or negligent director may also be personally liable.

Trespass

Depending on the ordinary use and enjoyment of the land in question, flying a drone at a reasonable height above it is unlikely to constitute trespass. The case of Bernstein v Skyviews, concerning the taking of aerial photographs for the purpose of marketing property, is of particular relevance to the anticipated commercial use of many drones. In this case, a plane flew at a height of 1000ft (305m), which did not constitute a trespass.  However, the position in relation to drones remains untested and the taking of any photograph could still give rise to the issues referred to above.  Continued use of a drone in this way may be actionable as a private nuisance.

Conclusions

As with all new technologies, the use of drones gives rise to potential exposures that were not in the contemplation of many insurers at the time when many currently-available policies were drafted.  As a consequence, many of the potential exposures for drone users are not protected by conventional policies.

However, insurers are usually quick to realise that new risks lead to new opportunities for insurers that can offer protection against those risks.  Consequently, policies are now available for both private and commercial users of drones.  Anyone using a drone should take advice on the options available to them. Failure to do so could be very costly indeed.

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