Rise of the drones

OnDemand

23 December 2015

Aviation Canada

Drones have opened up a new world of creative and commercial possibilities; but they also present unprecedented challenges to privacy, security and safety, among other things. With the regulators playing catch-up, those seeking to capitalise on the new opportunities must work out how best to navigate this uncharted space.

Have specific regulations on drones been introduced in your jurisdiction?

Yes, Transport Canada – which regulates aviation in Canada – has implemented rules and regulations applicable to drones pursuant to its authority under the Aeronautics Act. Canada has authorised the use of commercial drones since 1996, but has undertaken several consultation processes and updates to the regulatory system in the last decade in recognition of the growth in the use of this technology for both commercial and recreational purposes. Canada's regulatory framework under the Canadian Aviation Regulations currently distinguishes between 'unmanned air vehicles' (UAVs) and 'model aircrafts'. A 'model aircraft' is an aircraft with a total weight of 35 kilograms (kg) or less that is used for recreational purposes, while a 'UAV' is defined as a "power-driven aircraft, other than a model aircraft, that is designed to fly without a human operator on board".

The latest stage of consultations commenced in May 2015 with the release of a notice of proposed amendment, in which Transport Canada set out the various options it is considering as changes to the current drone regulations. The invitation to comment officially closed at the end of August 2015 and the amendments are expected to be promulgated in 2016. As described in more detail below, Transport Canada is proposing to implement regulations that will govern smaller drones using visual line-of-sight (VLOS). Larger drones and those operated beyond VLOS will require specific special operator certificates.

What regulations apply in terms of the right to fly, safety requirements and restrictions on the use of drones, for both leisure and commercial purposes?

Over the last decade, Canada has generally taken a more permissive stance than the United States with respect to drones. As the US government has moved towards regulating but allowing more use of this technology, Transport Canada and the US Federal Aviation Administration have been working together to coordinate and develop the regulation of UAVs. The amendments to the Canadian regulatory system are expected to continue the risk-based approach that has been taken to date, but the rules and requirements for different categories of drone operator will be more formalised than has been the case over the last several years.

Transport Canada has authority under the Canadian Aviation Regulations to issue special flight operation certificates (SFOCs) to drone operators. While SFOCs are generally time and location-specific and limited, longer-term or blanket authorities are possible where the operator has an established history of approved SFOCs.

However, recreational users do not require SFOCs unless their aircraft weighs more than 35kg. In addition, in recognition of the expanding use of UAVs for research and business purposes, in late 2014 Transport Canada issued exemptions from the requirement of obtaining SFOCs for commercial users whose UAVs weigh less than 25kg. These exemptions are due to expire in December 2016, but it is expected that the new regulatory system will be in place by then.

Operators that are subject to SFOCs are required to provide detailed information to Transport Canada, including:

  • the purpose of the operation;
  • the date, time and location of the flight;
  • the boundaries of the area in which the flight will take place; and
  • the safety plans.

To qualify for an exemption from obtaining an SFOC, Transport Canada requires that commercial operators of UAVs comply with several flight rules and conditions. For example, such operators must have public liability insurance of at least C$100,000 in place and must maintain continuous unaided visual contact with the UAV (VLOS piloting). In addition, they must not operate:

  • more than 300 feet above ground level;
  • within five nautical miles from the centre of any aerodrome or from any built-up area; or
  • over "an assembly of persons".

All drone operators must comply with various Transport Canada safety guidelines and flight rules, including the prohibitions on flying within five nautical miles (approximately nine kilometres) from any aerodrome, or within 150 metres of people, animals, buildings or vehicles.

The amendments to the regulatory system – although not yet finalised or made public – will apply to UAVs weighing 25kg or less that are operated within VLOS. Operators of larger drones and those not operated within VLOS will require SFOCs, as will those that do not meet certain regulatory conditions that are currently being proposed. Essentially, Transport Canada is proposing to bring in a regulatory system to govern when an SFOC is not required. If operators do not qualify for this regulatory system, they will be governed by their SFOC.

Under the proposal, Transport Canada would distinguish between the operation of small UAVs that are engaged in 'complex operations' and those engaged in 'limited operations'. Those involved in complex operations – such as those around urban or built-up areas or near to aerodromes – would be subject to more regulation than those involved in limited operations. In addition, a lower threshold of requirements would apply for the operation of 'very small' UAVs (it has not yet been determined how this category will be defined). The proposed regulations cover areas such as:

  • aircraft marking and registration;
  • whether a UAV operator certificate is required;
  • pilot training requirements;
  • aircraft maintenance requirements; and
  • general operation and flight rules.

Based on Transport Canada's proposals, it appears that complex operation UAVs will be allowed to fly in more areas, but will be subject to more operational regulation, while limited operation UAVs will not have to meet as many regulatory requirements, but will be restricted in where, when (daytime only) and how (maximum speed) they can be flown. Very small UAVs, because of their relatively low-risk rating, will be subject to fewer regulations and restrictions, as long as they are flown in a safe manner. The specifics of the proposal are expected to be released in early 2016.

What are the related privacy issues to consider where data and images are captured by drones?

The Office of the Privacy Commissioner released a report specifically addressing privacy concerns that were raised by the increased use of drones in 2013. It also responded to Transport Canada's notice of proposed amendment in 2015.

Commercial operators of drones are subject to federal privacy legislation (the Personal Information Protection Electronic Documents Act) and, in some provinces, to provincial legislation. They are therefore subject to the same requirements as any other entity that collects data. The Personal Information Protection Electronic Documents Act requires a person's consent to the collection and use of his or her personal information (including taking his or her photograph in a public place if they are identifiable), depending on its sensitivity and subject to certain exceptions. Any federal government agencies that use drone technology are subject to the Privacy Act and provincial government agencies are subject to provincial privacy legislation.

Where recreational users are concerned, there are Criminal Code provisions governing voyeurism and there is the possibility of being sued civilly for invasion of privacy.

While no privacy laws specifically apply to drone operators, Transport Canada's current flight rules and other regulations tend to prevent flight near to people or built-up areas, unless specifically authorised under an SFOC. However, in the proposed amendments, both complex operation small UAVs and very small UAVs would not be restricted from flight in built-up or urban areas.

All of these possible means of protecting privacy rights require the ability to identify the operator of any UAV that is thought to be infringing on privacy rights. The federal privacy commissioner has called for certain measures to be adopted in the new regulatory system to be rolled out in 2016. These include some form of identification and registration of UAVs so that operators can be identified. Transport Canada is proposing that very small UAVs need not be marked or registered, but that small UAVs undertaking either complex or limited operations do (with the particulars under discussion). The privacy commissioner has also recommended that some consideration be given to adopting a system of "sensitive and protected areas" in which UAVs could not be operated (eg, residential areas, school grounds and memorial sites).

Is there any intersection between specific property rights in your jurisdiction and the related airspace and privacy issues arising from the use of drones?

A landowner does not own everything above and below his or her land to an indefinite extent. However, passage of a drone (or other aircraft) over property in a way that interferes with the owner's use could constitute an actionable trespass or a nuisance. Time will tell if these kinds of action will succeed.

At least one municipality in British Columbia has passed a bylaw prohibiting drones. It remains to be seen whether other local jurisdictions will attempt to pass legislation relating to drones, and such laws could be challenged in court. Aviation (or aeronautics) has been determined by the Supreme Court to fall within exclusive federal jurisdiction to such an extent that provincial and municipal jurisdictions' ability to legislate in this area is circumscribed. Transport Canada treats drones as an 'aircraft', but courts may not agree or may distinguish between different types of drone. In addition, if local jurisdictions pass legislation that is targeted at privacy issues or public spaces or other areas within their jurisdiction, but which might affect the operation of drone technology, these laws may be less easily challenged.

What are the insurance implications in your jurisdiction?

Currently, public liability insurance is required for anyone operating drones for a commercial purpose or under an SFOC. Once the regulatory system is formally amended, it is likely that insurance will be required for all drone operators except those that fall under the regulatory system that applies to very small UAVs.

In case of an accident involving a drone in your jurisdiction's airspace, how would liability be treated?

How liability will be treated will depend on the particular circumstances of any drone-related accident. Transport Canada has implemented relatively rigorous safety-related regulations and rules, and will be introducing more. This is especially true for commercial operators or, under the expected new regulatory regime, those operating larger small drones. Early entrants in the drone insurance market in Canada have emphasised the training, safety management and maintenance requirements of drone operation in Canada as part of their risk assessment. Liability for property damage, trespass, nuisance and invasion of privacy will depend on:

  • the identity of the operator;
  • the area in which the accident occurs;
  • whether safety and flight rules were followed in the flight; and
  • insurance coverage.

For further information on this topic please contact Carlos P Martins or Andrew W Macdonald at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (cmartins@lexcanada.com or amacdonald@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.

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