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The IBA’s response to the situation in Ukraine
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Thursday, 5 March 2020
1415 – 1545
Greenwoods GRM, London
This workshop involved delegates from different jurisdictions, including Brazil, Germany, Mexico, Poland, Portugal, Slovakia, Spain and Switzerland. The outline below summarises some of the topics either one or both of the groups discussed.
In order to set the scene, discussions began with exploring the use of drones and their social and economic benefits. Few delegates were amazed to hear that large corporations have invested in drone racing. In certain countries, such as the United Kingdom, drone racing is becoming a popular hobby and there are several drone racing events on an annual basis across the country. Delegates discussed certain autonomous drone tests carried out so far and emphasised how extremely versatile the possible use of drones could be within the delivery, construction, medical, transport and agriculture industries. Moreover, the drone industry has contributed to emerging support services for those industries, such as training, repair, maintenance, strategy consulting and supporting technology services (including data analytics, data management, flight planning and management, inter alia). It was agreed that the use of drones within a humanitarian, social and business context could improve connectivity, contribute to the boosting of the economy worldwide and create new highly skilled job opportunities.
Delegates raised concerns about the environmental impact the increasing use of drones could have for air pollution, highly congested areas and battery waste on our planet. Despite Amazon’s vision announced in February 2019, there was a high level of scepticism from delegates that the development of drone technology within a wide range of sectors in a global economy would be able to increase the contribution to the decarbonisation of the economy within the next ten years.
Delegates were then asked to identify how they want drones to be autonomous and why. During the discussion it was highlighted, among other things, that few delegates thought there was a current and effective need for people to make drone use completely autonomous. Such new drone technology and its challenges were considered to be unnecessary. Others believed it is important drones become autonomous since this would increase their use and efficiency for commercial and leisure applications, and also humanitarian needs reducing risk to human life. For such purposes, there is a need to raise the number and quality of tests to overcome the current limitations of drone technology (such as maximising the drone carrying capacity, improving aerodynamics, reducing weight and designing, testing and certifying sensors, radars and cameras able to encounter, react and avoid obstacles and face adverse weather). It was also highlighted that it is not possible to carry out such new and advanced tests without an open and collaborative approach from local regulators. Regulators would need to focus on reassessing the right balance between the existing legal framework and the fast-paced technological developments. As the development of drones continues, delegates unanimously felt comfortable to let go of the ultimate safety feature, this being the remote pilot, once the use of autonomous drones is considered functionally safe and secure; they are compliant with privacy safeguards and sustainable for the environment.
With the increasing use of drones, it is possible to envisage that autonomous drones would complement human capabilities rather than replace them in the next ten years. The discussion emphasised the dilemma of whether humans would be able to maintain control in any form over autonomous drones. Where humans can retain some control, it was felt this would ensure that the rationale behind any decision taken with the aid of an autonomous drone can be supplied, which is important where this can have a substantive impact on peoples’ lives.
Delegates raised concerns about the issue of legal responsibility in the event of accidents. An increase in civil and recreational drone use would also mean a rise in potential damage and accidents, such as physical injuries, property and vehicle damage. The existing European Union legal framework appears to be fragmented across EU Member States. This is currently hindering victims of accidents caused by drones, in certain EU Member States, from easily obtaining compensation, due to lack of insurance and identification. It was also considered that an obligatory insurance scheme may be established and supplemented by a fund for cases where no insurance cover exists. Despite the rules for drone operators adopted by the EU Commission in May 2019, which will harmonise the regulatory environment across Member States, it remains one of challenges for the EU to resolve this issue soon, since the use of recreational drones is becoming more popular.
Discussions also centred around EU rules and procedures for the operation of drones and how EU Member States have been active to review and prepare for changes in regulation. It was briefly shared that it is well documented how past disruptive incidents have shown that the risk of drones colliding with aircraft or helicopters is very real. It was noted that certain restrictions commonly apply to all operators and flyers of drones within the EU. However, it appeared that in certain EU countries there are currently more regulatory restrictions than others. For instance, in Germany, all flyers of drones weighing more than two kilograms require a specific authorisation and mandatory insurance while, in Spain, insurance is only recommended. In other EU countries, such as Poland and Portugal, flyers of small sized drones weighing less than 25 kilograms are not subject to any specific authorisation and insurance, except for drones used for commercial operations. In other countries such as Mexico and the UK, a compulsory registration and competency requirement will apply for all flyers of drones weighing at least 250 grams.
Delegates’ experience in the General Data Protection Regulation (GDPR) showed that commercial drone operators are subject to GDPR compliance during drone flights that are fitted with cameras and other sensors. They are required to be able to demonstrate that they have a lawful basis for carrying out such activities such as obtaining consent from data subjects, making a privacy statement and a data protection impact assessment (DPIA) publicly available by way of documenting every stage of the planning process and the flight itself.
In most cases, it is unlikely that recreational drone flyers think of privacy and data protection issues. In certain circumstances, it may be difficult to distinguish between what would be acceptable and what is properly enforceable. It is likely that drone hobbyists will be exempt from GDPR on the basis of a household exemption, although the use of drones fitted with cameras or other sensors can collect personal data and have privacy implications. It would depend on the specific circumstances in each case. Whether a cause of action would infringe privacy may depend on whether and to what extent there was a legitimate expectation of privacy. As one delegate mentioned with an example, the position is even less clear where a drone is flown over another property on multiple occasions taking multiple pictures. It would be important, therefore, to spread awareness on the responsible use of drones with guidelines provided by the GDPR authorities in any relevant jurisdiction. This could be undertaken through informative campaigns, inviting people to think of the privacy implications concerning drone use and applying a common sense approach to the issue.
Finally, one table briefly discussed possible steps in order to increase drone safety education for the general public. For instance, in the UK, a Drone Code issued by the UK Civil Aviation Authority is a guide which has been prepared with this objective (this is now available online and published in common drone flying areas). It was also considered important that governments spread information, awareness and training, by encouraging and ensuring regular law enforcement is undertaken for such purposes.