There is a legal and regulatory maze surrounding drones, from conception to flight. Here are a few of the things that need to be considered.
Use of airspace – Requirements generally rest on drones users and depend on the use of the drone, with leisure or commercial purposes differing in legal obligations. Where drones are regulated, areas such as congested or no-fly zones are established with more restrictive measures, among which are the drone’s weight limits, vertical and horizontal distances vary by country. Authorisations or permits are generally required when drones are used for “aerial work”.
‘Big Brother’ with wings – As soon as a drone processes personal data, data protection and privacy laws apply. The EU Article 29 Working Party highlighted in a recent guidance some hurdles drones users (and manufacturers) should take account of in using and designing privacy-friendly drones. Certain countries allow household exemptions for aerial shots provided they are not used for commercial purposes. Some uses of drones such as for journalism require striking the balance between freedom of information and individuals’ privacy or national security imperatives.
Communication spectrum resources – Spectrum being a scarce resource, governmental authorities allocate specific frequency bands to model aircrafts uses, essentially to prevent harmful interferences. Compliance with spectrum use rest on the manufacturer and on the user (in case of tinkering with radio equipment). Some countries impose financial and even criminal penalties for illegal use of spectrum bands.
Determining liability for drones use can at times be a brainteaser, particularly when navigating varying international conventions, legal, regulatory, tort and contractual obligations. While the pilot will be ultimately responsible for illegally flying a drone, the manufacturer’s liability may be engaged as well if the drone is defective. Third parties, including the victim(s), hackers, lenders, renters and “co-pilots” may contribute to the damage or be convicted as accomplices. Some countries criminally sanction non-compliance with drones laws and regulations, though enforcement has been modest to date. With the increase in drone popularity, enforcement is likely to increase as a deterrent.
Manufactured product legal and regulatory obligations such as statutory warranties, product security and specific marking and certification requirements engage as well. Likewise, many drone models marketed fall under the toys regulations and voluntary international standards (such as ISO 8124:2014) which aim at ensuring safety of products sold and distributed as toys.
Other issues, such as intellectual property on software or images, on patents (for example, the recent Parrot c/Drone Technologies Inc. $7.8m patents infringement case), drones designs, air transportation regulations, dual-use goods export control regulations and consumer law requirements should also be taken into consideration by drones users and manufacturers.
With all of this to think about, drones could definitely be considered flying into a legal storm.
Sylvie Rousseau is a partner and Thibault Soyer is an associate at Olswang