One of the fascinating things about the law is its evolution and development; when new technology is developed, it may need to be policed.
We are frequently consulted about privacy issues and violations in relation to neighbour and property disputes, and the increase in the use of drones and their availability means homeowners can potentially find that their privacy is more easily interrupted than perhaps was possible even a decade ago.
Is there legal precedent to prevent drones from flying over my property?
No. Currently, you cannot stop drones from flying over your property completely, but there may be steps you can take if your property, in particular, is being targeted and if video recordings are being made and then published.
What do the courts say about drones taking photographs and videos?
Trespass by drones was the subject of the court's attention in 2023, Anglo International Upholland Limited v. Wainwright [2023], when the High Court granted an interim injunction to stop urban explorers trespassing in the air space over a Catholic seminar in Lancashire. The trespassers had been flying drones over the site and taking videos and photographs, which they then published on social media, which encouraged other people to intrude and look at the site.
The landowner had tried very hard to prevent the ongoing trespass and had installed on-site security and a high perimeter fence, but that didn't prevent the drones from flying overhead.
As drones are a relatively new development, there is little case law on whether or not a drone operated by unknown persons can commit a legal trespass, and the court, therefore, had to look at some interesting existing legislation to see if it was operative.
The key provision was Section 76 of the Civil Aviation Act 1982, which states that there is no trespass "by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all of the circumstances of the case is reasonable". The Judge took the view that the drone flying at a height above the ground, which in all of the circumstances of the case was reasonable, did not amount to a trespass, but the fact that the drone was then taking photographic and video footage was a trespass. The Judge concluded that the drone use here was actually encouraging further trespassing.
In a new development for English law, an injunction was granted against unknown persons who were operating and controlling the drone.
The drone operator did not defend the application for an interim injunction, so the facts were not fully argued in court. However, the High Court decision will now bind the county court.
As an aside, another novel consideration was how the injunction order was served on the unknown persons. Service can be a challenge when you don't have a name or address for a party, although in recent years, the courts have allowed service by attaching a copy of the order to a stake in the ground on or near the relevant site, by publication on social media platforms, and/or by making a statement on your own social media.
In this case, the claimant obtained permission for alternative service through two novel means.
Firstly, at the claimant's request and before the hearing of the injunction application — the named defendant published a post on his social media page notifying his followers of the existence of the claimant's injunction application and including a link to a shared online space containing the application documents.
The claimant demonstrated in its application that the defendant's social media page, which had nearly ten thousand followers, was being successfully used to encourage further trespass.
The Judge allowed this as one of the methods of alternative service on persons unknown under CPR 6.15 and 6.27. As such, the claimant could rely on one defendant (the named defendant) serving the application on another defendant (persons unknown).
Service by QR code
Secondly, the Judge permitted service of the injunction order by placing notices around the edge of the site in the form of QR codes, which — once scanned by a smartphone — would lead to the shared online space in which the injunction order (and all other application documents) could be viewed and downloaded. The claimant, therefore, didn't have to print all the documents (totalling several hundred pages) and place them around the site, which is the usual form of this type of alternative service.
These methods of service were used by the claimant in conjunction with those methods previously seen in UK Oil and Gas Investments Plc v Persons Unknown and HS2 v Persons Unknown — i.e., sending messages to social media groups and publicising the injunction on the claimant's website. In addition, the Judge also allowed service of the order on the named defendant by email.
What are the warnings for drone operators now?
Drone operators now need to be wary and they should seek the consent of landowners in order to avoid future problems.
What about the future of drone use?
It is also an interesting decision, given that Amazon announced that they intend to carry out drone deliveries in England by the end of 2024. However, a distinction could be drawn if they are not recording footage. At the date of this article, Amazon has not started using drones for deliveries in the UK but has just started to do so in the USA, so it will be interesting to see how the law evolves in the USA in this area.
