Drones, an open goal for sports clubs or could the trains save training?

Earlier this year the Premier League football team Leicester City were forced to take action after a drone was flown over their Seagrave training ground. The video footage later appeared on YouTube but has since been removed “due to a privacy claim by a third party.”

Can football clubs (or any other business) prevent drone operators taking video footage over their premises using existing laws?

Trespass

As a starting point, it is well established in land law that a landowner owns the airspace above their property to the height that is necessary for the ordinary use and enjoyment of the property. This was established in the case of Bernstein of Leigh v Skyviews [1978] and was in relation to a manned aircraft taking photographs of houses. In that case, the court did not consider taking photographs from a manned aircraft to be a trespass. The court did not consider the taking of photographs to be a nuisance either. Interestingly, and keeping in mind this is a case that dates back to 1978, prior to the Human Rights Act 1998 and the privacy laws we are now accustomed to, the court did state that constant surveillance from the air would amount to a “monstrous invasion of privacy.”

In the more recent case of Anchor Brewhouse Developments Limited v Berkley House, the court found that cranes that swung over a property to constitute a trespass.

Both of those cases are pre-drones, but, there doesn’t seem to be a problem with flying a drone in a public airspace.

Privacy

The law of privacy is often described as a balancing act between two of the competing rights contained in the European Convention on Human Rights (ECHR) which is brought into domestic law by the Human Rights Act 1998. Article 8, which is the right to respect for private and family life and Article 10 which is Freedom of Expression. The courts would work out which of these competing rights outweighs the other on a case-by-case basis.

Ordinarily, if a photographer was to take a photograph of a high-profile individual in a public place, for example walking down a road then that would not ordinarily constitute a breach of privacy unless the information (in this case a photograph was obviously private) and publication of it would cause offence. For example one of the leading privacy cases is Campbell v MGN. The supermodel Naomi Campbell leaving the ‘Narcotics Anonymous’ clinic and in that case, the House of Lords decided that the Mirror newspaper had breached Ms Campbell’s privacy rights.

If a drone operator is in a public airspace, can the operator take photographs or videos of individuals in a private place of work below?

Changing the dynamics of the example given above, if a photographer was to take a photograph from a public street inside someone’s home, then there would likely be a cause of action for a breach of privacy rights. One has an expectation of privacy when in their own home.

There is no reason to expect that the expectation of privacy wouldn’t extend to a place of work. When at work, at a private location employees would expect privacy. In contrast to a football stadium which is a very public place and photographers and TV cameras are encouraged.

Nuisance

Could the use of a drone constitute a nuisance. It clearly interferes with football clubs ability to use their property freely as they would wish as they may need to stop specific types of training if drones are flying over. However, the law of nuisance is now very much more limited after the Supreme Court ruling in relation to the Tate Modern. It would probably be necessary to show that drone flying was not a reasonable or appropriate use of airspace to pursue a claim. This would be something that would not be likely to succeed. It may be a more effective approach where a person had a window or balcony that overlooked a training ground and had set up a deliberate programme to use that space to film or watch training to allow them to leak information.

Data Protection

Another consideration might be data protection rights. The data protection law is the UK General Data Protection Regulations (GDPR) and Data Protection Act 2018.

The regulator of data protection, the Information Commissioner’s Office (ICO) has issued guidance in relation to drone use and it categorises drone users / unmanned aerial systems into two categories i) ‘hobbyists’ who are using their drone for personal activities and ii) individuals who use their drone for professional or commercial purposes.

Individuals are known as data subjects to use the data protection parlance. If a drone operator was to film anywhere and capture an image of an individual, that operator would become a data controller of that personal data. Pursuant to data protection legislation, data controllers need to have a reason to use / process that personal data. Unless they fall into category (i) in which there is an exemption to process personal data for purely domestic purposes. Arguably posting that personal data online is not purely domestic use.

Within its guidance, the ICO has stated that drone operators must provide privacy information to let individuals know they are being recorded. The examples the ICO has given are:

• formally registering your drone with the Civil Aviation Authority (CAA);
• placing signage in the area you are operating a drone explaining its use; and
• having a privacy notice on a website that you can direct people to, or some other form of privacy notice, so individuals can access further information.

The ICO has stated that drone operators should be able to provide a strong justification for their use. Performing a robust Data Protection Impact Assessment will help operators decide if using a drone is the most appropriate method. Therefore, simply flying a drone over a private place of work with the purpose of recording images of individuals is unlikely to be allowed under data protection legislation.

The ICO suggests that to reduce the risk of intrusion, operators could use drones that have a restricted field of vision or only films at certain altitudes.

It’s important to note that there is no corporate right to data protection and therefore a football club or any other business couldn’t assert its Data Protection rights it would be the individual footballers concerned who would have to act in their own right. However, the data that they would be seeking to protect might be quite sensitive. A footballer who is injured for example may not wish that to be widely known and a deliberate effort to film him or her to establish the nature and extent of the injury would be an attempt to uncover data about health, which is tightly controlled by the GDPR. Therefore a claim to protect this is likely to be successful.

Confidential Information

There is an argument, particularly in the context of professional sports clubs that the work on the training ground is private information and it is unlawful to share information that is confidential.

HS2

Could the answer to the problem be resolved by the HS2 rail project?

In September 2022, the High Court ordered a detailed injunction being placed in force which essentially prevented anyone from entering or remaining on HS2 land, deliberately obstructing or interfering with the free movement of vehicles, equipment or persons accessing the HS2 land and interfering with fences and gates. What was particularly important about this injunction was that it was pre-emptive in nature. While there was some activity on some HS2 sites the basis for the injunction was the expectation of mass trespass onto HS2 land.

The court did expressly state that the injunction was not intended to prohibit lawful protest. Anyone breaching the injunction is at risk of contempt of court and may be fined, imprisoned or have assets frozen.

This sort of pre-emptive injunction might be an option that sports clubs who can show they have a recurring problem could consider to prevent drone operators filming above training facilities. In practice it may in fact be the best option as it would not require identification of a specific individual and could be relied upon by security staff and the Police to intercept and warn off drone operators at an early stage in their activities.