16 December 2015
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?
Civil aviation in Nigeria is governed by the Civil Aviation Act 2006 and the various regulations enacted by the Nigerian Civil Aviation Authority (NCAA). However, the Civil Aviation Act does not specifically provide for drones and they are not required to be registered. The use of drones for leisure and commercial purposes has yet to become widespread in Nigeria, which may be a reason why there has been no significant legislative enactment covering it.
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?
No specific regulations have been enacted.
What are the related privacy issues to consider where data and images are captured by drones?
Privacy issues arising from the use of drones include those regarding the ownership of images captured using photography drones. Under the Copyright Act 2004, ownership of photographs generally resides with the photographer. This rule would therefore seem to apply where a photographer uses a drone to take a photograph. However, issues may arise in a situation where the drone is used to capture images or data while being flown over private property. Such use could potentially lead to the common law tort of nuisance, whereby the drone operator is deemed to be interfering with the property owner's right to peaceful enjoyment of the property. It may also amount to an invasion of privacy.
Is there any intersection between specific property rights in your jurisdiction and the related airspace and privacy issues arising from the use of drones?
Regarding ownership of real estate, Nigeria operates under the common law maxim of quid quid plantatur sedit solo solo (ie, what is affixed to the soil belongs to the soil), whereby a property owner is deemed to own not just the property but also the airspace above it. Further, where an individual gains access to another party's property, it may amount to the common law tort of trespass.
However, regarding air travel, this can be qualified by the Civil Aviation Act, which exempts trespass or nuisance caused by the flight of an aircraft over property (at a reasonable height above the ground) or by the ordinary action of such flight – provided that the flight over the property complies with the regulations in force at that time.(1)
If the existing law relating to aircraft is applied to the use of drones, the question therefore arises as to whether the use of drones which fly at low altitudes would be deemed to be at a 'reasonable height'; otherwise, their use may amount to trespass.
Trespass of property occurs when an individual encroaches on the property of another by wrongfully entering, remaining in or placing objects on the property. Although there has been no case in Nigeria where the use of drones was held to amount to trespass, the potential remains for a drone operator to be deemed to have trespassed if it does not obtain permission to operate a drone over private property.
What are the insurance implications in your jurisdiction?
Since the civil and commercial use of drones is a recent development in Nigeria, no insurance policy exists specifically for the use of drones. Many security protocols and safety regulations must be put in place before the commercial use of drones can be normalised, as most of these regulations are undefined for drones. In addition to regulatory and legal challenges, there are complex liability and coverage issues relating to insuring the commercial use of drones in Nigeria (eg, the issue of insurance coverage against invasion of privacy or trespass).
However, even with the existing lack of drone claims, it is clear that two particular issues are going to raise red flags to the insurance industry: personal injury and invasion of privacy. Before insuring a drone, insurers will want to know:
Aviation insurers in Nigeria generally insure aircraft, the cargo they carry and operator legal liability for damage to third-party property and injury to passengers. Further, major insurers in Nigeria (eg, Industrial & General Insurance plc) generally provide aircraft insurance cover for different types of risks and liabilities, including aviation refuelling liability and general aircraft hull and liability.
Given that the use of drones for commercial purposes is a completely new area for the insurance industry, it is incumbent on insurers to ask the right questions and be thorough when flushing out the details. For example, insurers should inquire about data collection, storage and usage policies, the drone's particular purpose and other physical specifications.
In case of an accident involving a drone in your jurisdiction's airspace, how would liability be treated?
Due to the fact that drone use has not been commercialised in Nigeria, any accident involving a drone in Nigerian airspace will be treated under the general liability rules of the Civil Aviation Act.
All parties that incur losses when an aircraft collides with them or their property are entitled to damages. Section 49(2) of the Civil Aviation Act provides that:
"Where injury, loss or damage is caused to any person or property on land or water by an article or a person in or falling from an aircraft while in flight, taking off or landing, then, without prejudice to the law relating to contributory negligence, damages in respect of the injury, loss or damage shall be recoverable without proof of negligence or intention or any other cause of action, as if the injury, loss or damage had been caused by the wilful act, neglect or default of the owner of the aircraft."
The section further states that where the owner of the aircraft is liable to be indemnified by a third party, that third party shall be liable to indemnify the owner against any claim in respect of the relevant injury, loss or damage.
These provisions make it easy for persons who have suffered injury while still on the ground to claim damages from a defaulting airline for damages caused to them or their property. Further, the phrase "any other cause of action" means that apart from the cause of action created under the section, claims may also be made by injured parties under other laws, such as the tort law on negligence under special and general damages.
Consequently, third parties that have suffered loss from an aircraft crashing into their neighbourhood – as occurred in the Dana air crash – are entitled to compensation and can enforce this right to compensation in a court of law in Nigeria.
For further information on this topic please contact Timeyin Bob-Egbe or Veronica Alaba Oyedejiat George Etomi & Partners by telephone (+234 1 462 1660) or email (firstname.lastname@example.org or email@example.com). The George Etomi & Partners website can be accessed at www.geplaw.com.
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