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Data Privacy & Security

Drones and the Law: What You Need To Know


Drones are becoming increasingly common in the private and commercial spheres. Here are three things you should know about drones and related legal issues:

What Are Drones?

Drones—otherwise known as remotely piloted aircraft (RPAs), unmanned aerial vehicles (UAVs) or unmanned aircraft systems (UAS)—are aircraft without a human pilot aboard.

Drones can vary significantly in terms of size, sophistication, function and cost, and can be used for a variety of purposes ranging from purely personal / recreational uses to commercial uses (e.g., surveillance, photography and exploration work) and uses in emergency situations or precision air strikes.   

What Laws Apply To Drones?

The laws applicable to drones vary between jurisdictions and also depend on a drone's functionality. However, typically:

  • Civil aviation safety laws regulate the use of airspace and therefore drone use. Many jurisdictions have introduced drone-specific regulations, regulating drones and the circumstances in which they can be used. These are typically administered by civil aviation authorities(e.g., the Federal Aviation Authority (FAA) in the USA, the Civil Aviation Safety Authority (CASA) in Australia, and Transport Canada) and may include rules about the airspace which drones can use, prohibitions on flying out of the drone operator's line of sight, restrictions on flying near airports, structures such as bridges or over highly populated areas, and requirements for commercial drone operators to register with the relevant civil aviation authority.

  • In some jurisdictions, torts such as trespass and nuisance and (in some cases) human rights laws which recognise a right to private and family life can impact and limit the use of drones.

  • Privacy and data protection laws may also limit or regulate how drones can be used to collect data, and what can be done with any data collected via drones.

  • Technical regulations (e.g. in relation to radiocommunications devices) may apply to drones, depending on their functionality.

  • Consumer protection laws may apply to drones marketed at, or supplied to, consumers.

Military and government drones may be subject to different regulatory regimes.

Drones – A Threat To Privacy?

In many jurisdictions, there has been criticism that existing laws do not adequately address the privacy risks arising from drone use. Highly manoeuvrable, relatively inexpensive drones can now be used to spy on private property that would otherwise be hidden from passers-by. Existing laws go some way to addressing these issues, but do not always prevent, or enable an individual to take action to prevent, such unwanted intrusions. For example, if a drone does not actually enter private property or interfere with the use and enjoyment of that property, there will be no actionable trespass or nuisance.  Further, many jurisdictions' privacy and data protection laws do not regulate the collection of personal data by private individuals, meaning they offer no protection from nosy neighbours using drone technology for snooping.

Commentators and law reform organisations in some jurisdictions have proposed changes to the law to address this perceived gap in protection. For example, in Australia, the Australian Law Reform Commission has recommended the introduction of a statutory cause of action for serious invasions of privacy, partly in response to worries about increasing drone use. The European Data Protection Supervisor has taken a slightly different tack, recommending that the E.U. combat the increased privacy risk posed by drones by clarifying and raising awareness of the existing data protection framework, and encouraging manufacturers to implement privacy by design and by default, and to embed data protection requirements to ensure compliance from the outset. The Article 29 Working Party takes a similar view in its Opinion 01/2015 on Privacy and Data Protection Issues relating to the Utilisation of Drones.

It remains to be seen how local policy-makers will respond to these recommendations. Those interested to know more should keep a close eye on regulators' websites for further developments.

 

Contributor – Liz Grimwood-Taylor