FLY YOUR DRONES: HERE'S WHAT YOU SHOULD KNOW
Drones can be described as unmanned flying aircraft (where usually) carrying function and purpose to capture aerial data using any instruments, like cameras. That term may encompass both civil and military drones.
Here, we focus on the civil drones, or some other jurisdictions give alternative terminology as RPAS (Remotely Piloted Air System); UAV (Unmanned Aerial Vehicle), UAS (Unmanned Aerial System), or simply more or less a flying camera/sensor. However, the term “drones” already in public domain used by many stakeholders (industry, the public, regulator, and military) in a diverse context.
That civil drones practically have various function, contingents to the manufacturers and its designed specifications. In Indonesia, media captured that drones have been used for taking picture (e.g. AirSelfie), military purpose, delivery services (e.g. Amazon or FedEx delivery drone in the USA), surveillance, recreational purposes, as well as, ancillary roles in people’s lifestyle and day-to-day needs (Jakartapost, 8/6/2018 and others similar sources).
Discussion on drones also varies which can lead to different interpretation and conclusions covering innovation and enterprise, safety and lawfulness, and how the market should be regulated and developed (including traffic managements) (www.gov.uk, 22/7/2017).
In Europe, drones with MTOM (maximum take of mass) below 150 kg are regulated by each the EU member states’ NAA (national aviation authority). For example, in the UK, the CAA (Civil Aviation Authority) requires a drone operator to be responsible when drones cause injury or damage on the ground, not dropping any article from drones that endanger persons/property, only flying the drones if safely has been assured, the operator shall have a direct visual with drones, not flying the drones (unless permission granted) in certain airspace zones.
Further duties include the take-off and landing of drones only carried out at a 30-meters distance from any person, hovering drones on the air not below 150 meters above ground level, drones for commercial purposes (incl. the provision of goods and services, except for ‘in-house’ research) must have a permission from CAA, safeguarding data protection and privacy, and other statutory duties (http://publicapps.caa.co.uk, CAP 722 on UAS Operation Guidance).
Those legal requirements can be centrically seen as an effort to address two legal issues: navigable airspace and property/personal right. In the USA, as a comparison, that first issue is dealt by FAA (Federal Aviation Administration) which, in the light of the FAA Extension Safety and Security Act 2016, has tasks to regulate drones flying below 152,4 meters (or 500 feet). FAA may regulate (by 2019) the use of drones, its management and efficiency, air traffic control, safety, navigation facilities, its noises at its sources, and handling permits for commercial drones to fly below 122 meters (400 feet). Nonetheless, another authority (NASA) has developed an air traffic control system for drones flying up to 500 feet (Windie L. Kellington, Drones, Urban Lawyer journal, ABA 27/9/2018).
Whereas in Indonesia, two primary legal instruments that regulate drones include the Ministry of Transportation Regulation No 180/2015 as amended by No. 47/2016 on the Control of UAS Operation in the Airspace Served by Indonesia (Reg180/2015). Those regulation delineates navigational aspects of drones in the airspace, licensing, restriction, and sanctions for incompliance. The Reg.180/2015, in essence, grant freedom to the operation of UAS on conditions that it is not used within certain areas, such as the prohibited areas, the restricted areas, flight safety operation area of an airport, controlled airspace, and uncontrolled airspace above 500m (Anggia Rukmasari’s chapter revisited, The Law of Unmanned Aircraft Systems, Scott(ed), Kluwer Law International, 2016).
However, other specific provisions restrict the operational usage of drones, inter alia, (a) for a drone with MTOM less than 25 kg used for non-recreational purposes, Civil Aviation Safety Regulation (CASR) Part 107 shall apply, and (b) if a drone below that MTOM with purpose of recreational usage shall apply sub section 107.2 of CASR Part 107. Further, the usage of drones shall obtain a license granted by DGCA (Directorate General of Civil Aviation of Indonesia) when use for border and sea patrols, weather radar, national park surveillance, survey, aerial photography, filming and aerial mapping. Registration of that licence requires a number of supporting documents, inter alia, a third-party liability insurance. Infringements of those provisions will entitle authorities (DGCA and Indonesian Army) to legally shoot down drones and impose other sanctions.
On data protection and privacy issues, there is no specific legislation on the data protections of drone use. However, the relevant legislations on privacy and data protection in the electronic system may apply if drones are collecting personal data, in particular, where a person’s face is clearly visible and/or can be identified in another way (incl. individual’s private life), subject to statutory exceptions. Where that is true, it will increase the applicability of those legislations. For drone operators, hence, principles of privacy and data protection should be borne in mind. For example, you may inform affected persons whenever capturing any of their personal data or private life (e.g. consent where necessity), to minimize the amount date about people (through anonymization), to respect an actual reasonable expectation of individual’s privacy (e.g. not to share data with third parties), and to proportionately demonstrate privacy-aware and lawful basis/license of your drone activities.
The authors acknowledge that beyond those issues, drone operation may also take into account matters on radio frequency spectrum’s interference (incl. jamming, interception, manipulation and cyber security risks), trespass (e.g. Article 167 of the Penal Code), nuisance, other tortious acts under tort laws (e.g. Article 1365 of the Civil Code on onrechtmatige daad). It is advised, therefore, to take appropriate measures to anticipate mitigate those risks. As an example, not to substantially interfere with the other’s use and enjoyment of people’s land or dwellings. Those may be some useful preliminaries that you should know, and now, fly your drones.
The writers are digital business and technology lawyers at Bahar & Partners Law Firm. The views expressed are their own.
Written by: Daniar Supriyadi (SH, LLM in Law and Tech) and Selvy Anissa R. SH
Member of Digital Business & Technology at Bahar & Partners Law Firm