Drones: The Sky Is A Limit
LEGAL ISSUES RELATED TO CIVILIAN DRONES IN EUROPE
Article posted on InterMEDIA | June 2015 Vol 43 Issue 2
According to the International Civil Aviation Organization (ICAO) an unmanned aerial vehicle (UAV), commonly known as drone, is an aircraft without a human pilot aboard. Drones, also referred to as remotely piloted aviation (RPAs), are usually employed by military services but increasingly in a number of commercial and civil applications.
Types of drones
There are two types of drones: a) Remotely Piloted Aviation Systems (RPAS), where the aircraft is controlled by a human pilot from a distant location, these being the only types of drones that can be authorized currently for use in the EU airspace b) unmanned drones, which are automatically programmed, without being piloted, even remotely, which are not yet authorized for use, neither by ICAO nor under EU rules.
Use of civil drones
The term "civil" drones covers those remote craft that are used for civil purposes such as delivering mail, (e.g. the Amazon “Octocopters” project for the speedy delivery of parcels), and inspecting infrastructure, such as oil platforms at open sea, dams, dykes, power grids or rail tracks (eg. Germany’s train operator has announced it plans to use drones equipped with cameras to pursue graffiti sprayers and prevent metal theft).
National authorities and more than 1000 licensed companies (mostly small and medium sized firms) in European countries, that have introduced relevant legislation (including France, Czech Republic, Denmark, Germany, Italy, Lithuania, UK, Sweden) are also increasingly using drones for photography, land surveying and disaster relief actions, for instance to overfly flooded areas or to support firefighting in forests or buildings. In other countries, drones support precision farming through more effective and timely application of fertilisers or insecticide while providing efficient crop inspection.
Future use of drones
In the near future, UAVs could be used to carry out many tasks, including jobs which are dirty, dull or dangerous for people, including search and rescue as well as construction repair work. Drones are expected to assist the industry in developing more efficient wind turbines to produce more "green" electricity, or to complete coverage of telecoms networks in a cost-effective way. Micro drones could be used to tackle gas or chemical leaks, or could be programmed to act like bees to pollinate plants. Overall, this sector is evolving very fast with industries signalling their interest in adapting drones to execute specific services for which there is an emerging market.
The size of the drones market in Europe
As drone technology is developing, the market for civil drones is rapidly increasing. According to the European Commission (press release published on 13 April 2014 at http://europa.eu/rapid/press-release_MEMO-14-259_en.htm) the next 10 years civil drones are estimated to be worth 10% of the aviation market, which represents an amount of approximately 15 billion euro a year. There are already more than 1,700 different types of drones produced globally by about 500 official manufacturers (mainly in the military sector with US and Israel being world leaders), with about one third located in Europe. Following industry estimates, the drones manufacturing industry may create up to 150,000 European jobs by 2050. For all these reasons the European Council, in December 2013, asked the European Commission to develop a framework for the safe integration of RPAS into civil airspace as from 2016.
Legal framework applicable on civil drones
To foster innovation and support the European RPA market, a set of coherent rules is necessary. The rule-setting authority is the ICAO, the United Nations body dealing with civil aviation. The ICAO allows drones operations, provided a national authority gives a specific authorisation, such as authorising the use of drones in a non-segregated airspace (this means in the same airspace also used by manned air traffic). As a general rule, those authorisations are typically restricted to specific operations under specific conditions in order to avoid safety hazards (for example, minimum distance from airports, no-fly zones etc).
Regulations on civil drones are still national
Some EU member states, such as Sweden, France, Denmark, Italy, Germany, Czech Republic, Lithuania and the UK have already adopted legislation for simple operations by light RPAS, to avoid this case-by-case authorisation process. However, national authorisations do not benefit from mutual recognition and do not allow for European-wide activities, either to produce or to operate drones. The authorisation procedures also do not provide a coherent framework, with the necessary legal safeguards in relation to concerns about safety, security, privacy, liability to be built in.
New legal challenges emerge
So drones are already beginning to appear in the European skies but there are no clear general rules, at national or at European level, which put in place the necessary safeguards to protect the safety, security and privacy of people.
Alongside the expansion in the commercial use of RPAs, drones have become increasingly popular for leisure users. In 2014, a number of drone-related incidents were reported in various European jurisdictions. For instance, in Serbia nationalist fans used a drone to disrupt a football match between the national teams of Serbia and Albania. In France, drones were detected “buzzing” close to a nuclear power station. Last summer, in the UK an unidentified drone came close to hitting a passenger aircraft landing at Heathrow airport.
Towards a coherent regulatory framework
The development of a competitive drones market in Europe will rely on a coherent policy and regulatory framework. The European policy framework concerns civil rules and commercial operations, in line with EU competence, but does not address military applications. It focuses on aspects related to safety rules, airworthiness, protection of citizen’s rights, privacy, safeguarding secrecy of communications and support for industry.
Strict EU safety rules are necessary
Rules to avoid accidents need to be developed by the European Aviation Safety Agency (EASA). Such rules must be compatible with ICAO standards by safeguarding an equivalent level of safety in comparison to regular, manned, aviation.
However, to avoid stifling the existing industry, safety rules need to be developed and applied in proportion to the risk that RPAs flights present. Since most firms use small crafts weighing less than 20kg, member States must retain a degree of flexibility in regulating these small craft to respond to local markets and support growth in the industry, where many technological challenges are at stake, such as the need for crafts to detect and avoid obstacles on the ground and in the air. The European Commission should implement its plans to incorporate RPAS into existing aviation research programmes, such as the Single European Sky Air Traffic Management Research Joint Undertaking (SESAR JU) and the Horizon 2020 research programme.
Protection of citizens’ fundamental rights is crucial
Drones are currently used for or have been proposed for use in domestic surveillance, license plate reading, facial recognition, interception of text messages and cell phone calls, and hacking into Wi-Fi networks. Infrared sensors, high-powered cameras and facial recognition may also expand their capabilities into more controversial realms. Drones equipped with cameras with a recording function may infringe intellectual property or personality rights. Drone operations combine flexibility, discretion and low costs with sophisticated sensing and storing capacity of ever increasing amounts of data, raising additional concerns for civil liberties and human rights.
To efficiently tackle ethical questions and societal concerns over misuse and unauthorised surveillance, drone applications need to be subject to the rules contained in the Charter of Fundamental Rights of the European Union. These include the respect for the right to personality, the right to individual privacy and family life, as well as the protection of personal data. To guarantee an acceptable level of protection, the operation of drones has to be subject to the permanent control and monitoring by national data protection authorities. Existing data protection rules have to be interpreted in a flexible manner to strike a right balance between the conflicting interests at stake between industry, operators, state and citizens. In this direction, the forthcoming EU data protection Regulation must remain technology neutral to accommodate the unique characteristics of RPAS.
Increased security to limit drone-related criminality
Except for facilitating innovative service delivery, drones may also be used as weapons or tools for potential unlawful actions. Terrorists, political extremists, criminals or rogue states could use their own RPAS, could jam the navigation or communication system signals of other drones or hijack ground control stations. Security aspects are vital when developing the necessary information streams to manage 4D trajectories in the future air traffic management system. Security requirements will then need to be translated into legal obligations for all relevant players, like the air navigation service providers.
Moreover, criminal laws may also come into play, and have to be tailored, as the court and lawmakers decide how to apply stalking, harassment, wiretapping, espionage, copyright infringements and intercepting of private communications.
Guarantee third party liability and insurance
From a civil law perspective, except for any legal provisions which would restrict the use of civilian drones for the purposes of surveying the surrounding area, the use of drones in the urban airspace is likely to provoke accidents involving personal injury and property damage.
Nevertheless, the current third-party insurance regime has been established mostly in terms of manned aircraft. The Commission will assess the need to amend the current rules for RPAS specificities and the way to promote the development of an efficient insurance market. In such market, fees have to correspond to the real financial risk estimated on the basis of acquired evidence through incidents and accident reporting.
Public awareness of safety hazards associated with the use of crafts has to be increased. A public debate about acceptable uses for drones has to be opened. Third party liability insurance has to be made compulsory as a condition for licensing operators, so as to cover the cost of compensation for accidents caused by professional or leisure users.
It is clear that mastering civil drones (RPAS) technology is a key factor for the future competitiveness of the European aeronautics industry. The Commission should support the emergence of a RPAS market and the competitiveness of the related industrial sectors making use of EU instruments such as the Horizon 2020 and COSME programmes.
In this direction, operational and technical rules also need to be further developed in order to ensure that civil drones can fly like 'normal' air traffic and be integrated among 'normally piloted' aircraft in non-segregated airspace without affecting the safety and the operation of the whole aviation system.
Dr Leonidas Kanellos
Attorney-at law, Telecom Experts, Professor of Pireaeus University, BEREC Chair 2013
24, Derigny Street, GR-10434 Athens, tel. + 30 210 8847718, fax. + 30 210 8847594,