Drones and freedom of expression

Article 10 of the European Convention on Human Rights provides that everyone has the (qualified) right to freedom of expression, which includes the freedom to receive and impart information. And section 12(4) of the Human Rights Act 1998 requires a court: i) to have regard to the importance of freedom of expression, when considering whether to grant any relief which, if granted, might affect the exercise of the right to freedom of expression, and ii) where the proceedings relate to material which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to have regard to the extent to which the material has, or is about to, become available to the public, or the extent to which it is, or would be, in the public interest for the material to be published.

In a recent case in the High Court – sitting in Manchester – an application for an interim injunction was granted against one named and a number of unknown respondents preventing them from entering the site of the former St Joseph’s seminary in Up Holland, but also preventing the flying of drones over the site. There is already a large amount of footage taken previously by such drones on the various online video-sharing sites, and some of them are fascinating and informative. The future of the site is evidently a matter of significant local interest.

The concerns of the applicants for the injunction are compelling: there have been numerous incidents of trespass on the site, and it is in a very dangerous condition.

The only published judgment I have been able to find is on the website of the chambers of the barrister representing the applicant. It appears to be a transcript of an ex tempore judgment. The judge notes that section 76 of the Civil Aviation Act 1982 provides that

No action shall lie in respect of trespass or in respect of nuisance, 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 the circumstances of the case is reasonable

A piece on the website of the solicitors acting for the applicants indicates that the judge proceeded on the assumption that section 76 applied to drones and that the drone operator had complied with the requirements of the Air Navigation Order 2016. He then said that either i) section 76 did not apply, because the flight involved the taking of footage for its presumed purpose of encouraging trespass (and presumably therefore it was not “by reason of the flight only” for section 76 purposes), or, ii) if section 76 did apply, then the height of the drones could not be reasonable, because of the taking of the footage.

However, nowhere in the judgment is there any indication that the judge has had regard to the court’s duties under section 12 of the Human Rights Act. It strikes me that there are clear freedom of expression issues raised. A large number of people are interested in general in abandoned buildings, and there is an enormous amount of online attention to this subject, and, more locally, there is clearly notable interest in the fate of a grade 2 listed building: the drone footage must, surely, play a part in meeting this public interest.

So it strikes me that it was incumbent on the court to conduct the balancing exercise inherent in Article 10, which provides that the exercise of freedom of expression may be

subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime [and] for the protection of health…

The respondents in this case did not attend the hearing but the judge was satisfied that notice had been given to them (although the judgment does not explain how notice was given to the persons unknown). Perhaps, though, if they had attended, and been represented, their counsel might have drawn the court’s attention to its section 12 duty.

In a letter to The Times in 1987 (quoted here), Lord Scarman deprecated a decision of the House of Lords, and commented that

their Lordships have, with great respect, overlooked the more fundamental law providing the right of the public to access to information … and the public right of free speech…Old ingrained habits die hard. We are not yet able to abandon the traditional emphasis of our law on private rights …

Might he have found himself writing a similar letter today?

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.