To Drone or Not to Drone?

At this current time, many states have not properly regulate the use of drones and enact a specific law for that purpose. Lawmakers are aware that the drone industry is rapidly evolving and proper regulation on its operation is pertinent to safeguard possible legal concerns. Few countries like the United States, France and Germany have taken the lead in legislating their use by enacting exclusive laws. These laws are supervised by the state aviation authority. Recently, Malaysia has followed through and enacted Civil Aviation Regulation 2016 (CAR 2016) which is part of the auspices of the Civil Aviation Act 1969 (CAA 1969); and the supervising body is the Department of Civil Aviation of Malaysia (DCA). As such, drone owners are required to and expected to observe the rules and laws applicable.

Generally, all drones have to be registered and permits are required to fly one. However, the rules for registration of drones have somehow been loosen by some countries due to the emerging industry of recreational drones. Most domestic laws require registration for drones which weigh more than 20kg, normally used for commercial purposes. Recreational drones now mostly weigh about 7-10kg (sometimes even less!). Thus, it is reasonable to infer that registration is not required for recreational drones. However, drone owners are advised to regularly check the rules and regulations in the country.     

Another important point to be observed as a traveler with a drone is whether you are permitted to transport a drone into the state you are entering. Some countries are very particular at what you bring into their country. Some countries even regulate a straight-up ban against drones, making it illegal to own a drone in the state. For example, India has banned the use of drones however is now taking progressive steps as draft regulations have already been submitted to the relevant authorities. Kenya and Thailand are examples where permit for camera-mounted drones from the transport ministry is required should one wishes to fly his drone.

From the examples above, it can be said that some states see drones as normal toy, but some states take drones more seriously than others; some countries may even confiscate your drones, like Saudi Arabia.

It is advisable to research on the laws of each state you are planning to travel to before bringing your drone with you. Since drone law is still fairly new and may be unfamiliar to some states, information about the regulations are hard to get. Therefore, it may be best if a call to the aviation department or the custom department be made first. 

Safety is a crucial issue in aviation law. A slight mistake in the air can cause a disaster. About a year ago, a drone owner uploaded an image of landing airplanes at the Kuala Lumpur International Airport (KLIA). The image showed a close proximity between the airplane and the drone. This caused uproar among the authorities and the people as this was clearly a safety concern. The drone could easily get sucked into the turbine engine of the airplane risking hundreds of lives. The drone owner was called for investigation but was later released without any fine.  

It is important for drone owners/pilots to ensure safety in the air space to avoid any accident. To ensure such safety, there are numbers of safety regulations to be observed before flying a drone. Amongst others, these are the core safety regulations applied in most states:-

1. Never fly your drone 400 feet above ground level
2. Keep your drone within visual range. You must be able to see your drone at all times.
3. Remain clear from any building, structure, vessel, vehicle or person
4. Stay away from airport vicinity
5. You are not allowed to fly above crowded areas such as stadiums, assemblies etc
6. You are to keep good control over your drone at all times. You could be fined if you are found reckless or negligent in flying your drone.
7. Fly only during day time. Some countries allow “dusk to dawn” fly-time.

In Malaysia, Rule 142 of the CAR 2016 provides as follows:

“The person in charge of a small unmanned aircraft shall maintain direct and unaided visual contact with such small unmanned aircraft sufficient to monitor its flight path in relation to other aircrafts, persons, vehicles, vessels and structures for the purpose of avoiding collisions.”

As an owner or a pilot of a drone, you are reasonably expected to ensure the safety in the airspace in close proximity between the drone and the safety of the people under the flying drone.

Apart from the issue of airspace safety, there is also a concern over national security since drones are also able to store and collect data. This is related to high security places and areas such as palaces, governmental offices, and national enforcement bases. On 11 November 2017, the Star Online reported that a crew of journalists were sentenced to two months imprisonment in Yangon over wanting to document the parliament building. The rise in drone flying has definitely sparked concerns over national security enforcers as sensitive information are kept well within the walls of such building.

To curb breach of national security, some countries have declared few “drone-free” zones in their states. In Malaysia, Putrajaya has been declared “drone-free” area since most governmental departments as well as the residence of the Prime Minister are located in the district. In China, flying of drones is prohibited around major monuments like the Forbidden City unless permit is granted. In Singapore, the Parliament House, the Singapore Istana, and the Paya Lebar airbase are off-limits. In Japan, drones are prohibited in highly populated urban areas, Imperial Palace, Prime Minister’s Office and key facilities including nuclear power plants. Osaka and Tokyo have even banned drone use in all parks within the city limits. These lists of prohibited areas are of course non-exhaustive.

Flying your drone up high is fun and thrilling but you may risk yourself invading someone’s privacy. As simple as it may sound, privacy is a massive concern over the rise of drone use by netizens. This concern includes issues on personal privacy, data privacy, private property rights and intellectual property rights. Intrusion of an individual’s private space and right to privacy is possible in this case as drones are capable in collecting and storing data. Breach of such right is considered a serious offence, not only domestically but internationally, as it is a fundamental right granted to an individual.

Unfortunately, rules and regulations governing flying of drones do not specifically address the issue of privacy as much as security and safety in the airspace. The applicability of law of privacy in most states is very much in its general sense.

Although, this issue has not quite been challenged in the court of law, drone pilots are expected to observe the rule of “reasonable expectation of privacy” of individuals in their public life. One’s public life must not be restricted by fear of being monitored and one’s privacy must not feel intruded. This issue is, however, would be a clear-cut case in the event drones are flown above one’s private property while data is being collected.

Awareness on privacy rights are increasing amongst netizens. Since the applicability and principle of privacy law is almost general and similar around the world, drone pilots are expected to understand and observe others’ rights to privacy, while exercising their freedom to fly their drones.  

Trespass to land/property is a tort action, recognised by many states around the world. Therefore, unlike the issue of privacy law, law on trespass to land/property is better established with clearer rule of law, even though applicability of the law on flying of drone is not specifically governed by statutes. However, the main issue or concern over the application of the law on trespass to land/property revolves around right of the land owner; whether the right extends to airspace above his land.

It would be a clear straight-forward case should a drone falls or lands on a private land/property to establish trespass. However, it is a little bit tricky if a drone is flown across or above a private land/property.

Under common law, two elements are to be fulfilled to establish trespass in this circumstance; (1) mental state of the defendant, and (2) interference. The court gives great emphasis on knowledge and intention of the defendant to fulfil the first element.

The court also takes into consideration the height of the flight at the time the alleged offence is done. In this circumstance, the Plaintiff might argue that he owns the airspace above his land. On this note, I would like to refer to the case of Bernstein of Leigh v Skyviews and General Ltd, 1978, QB 479 where the court held that there is no trespass and the rights of the Plaintiff (the claimant) is not infringed on the basis that the rights of the landowner only extend to a height necessary for the ordinary use and enjoyment of his land.  

It is, however, worthy to note that some jurisdictions recognise interference to airspace as part of interference to land. However, this issue has never been laid to rest as there are numerous conflicting views held by the courts. 

At times, drones are piloted by unexperienced or untrained pilot and this may risk occurrence of accidents perhaps caused by mechanical failures, weather conditions, interference or even birds. Sometimes, accidents may happen solely because of piloting mistake.

In the event accident does happen and subsequently cause injury to others, either physical or property, liability for such injuries may fall on the pilot – if it can be proved that there was mistake or negligence on the part of the pilot.

Just like any other tort cases, the aggrieved party (the Plaintiff) will have to show that there is a duty on the part of the pilot to take reasonable care while flying his drone. Subsequently, the pilot has breached his duty which then caused damage to the aggrieved party. Therefore, the pilot is liable to pay damages to the aggrieved party.

It is clear that in such cases, the burden to prove damage lies on the aggrieved party who had claimed for damages on the standard of balance of probabilities.