Rise of the drones

OnDemand

13 January 2016

Aviation Switzerland

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?

At the European level, the scope of the basic regulation(1) of the European Aviation Safety Agency is currently limited to drones(2) with a maximum take-off weight of 150 kilograms (kg) which are not used for military, customs, police, firefighting, search and rescue or experimental work. This means that the vast majority of drones are still regulated by national legislation.

While Switzerland has been reluctant to approach the integration of drones into the aviation system in a comprehensive manner, the following national legal instruments apply to drones operating in Swiss airspace:

  • The Aviation Ordinance,(3) which distinguishes between two categories of drones, depending on whether they are heavier or lighter than 30kg. Drones weighing more than 30kg may be operated only if authorised by the Federal Office of Civil Aviation (FOCA). For drones (or model aircraft) lighter than 30kg, no operation authorisation is necessary.
  • The Ordinance on Special Category Aircraft,(4) which provides for a more detailed framework on drone operations.

Drones weighing less than 30kg may be subject to further regulation at the cantonal level. Such local regulations are intended to mitigate the risks to third persons and property on the ground, as well as to reduce their environmental impact. The city of Zurich had previously banned the operation of drones above public ground altogether, although this ban was repealed in 2015.

The European Union is currently looking to develop a more comprehensive regulatory framework for drones. Future amendments to the Basic Regulation of the European Aviation Safety Agency will likely apply to drones in all weight classes.

It is likely that Switzerland will adopt any future EU regime on drones. It is therefore expected that the abovementioned Swiss regulation will be repealed in the near future.

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

While no operation authorisation is required for drones lighter than 30kg, this applies only to flights that take place in the pilot's direct line of sight. If the weight of the drone is between 0.5 and 30kg, no flights are permitted:

  • within five kilometres of the runways of any civil or military airport;
  • in control zones if the drone operates at an altitude of more than 150 metres above the ground; and
  • within a radius of 100 metres of a 'gathering' of people – according to FOCA, this should be understood as more than 24 people standing together.

FOCA may grant exemptions from these limitations if, after having carried out a comprehensive risk assessment, it is satisfied that no other airspace users and no third parties on the ground are at risk. In particular, FOCA reviews the following items:

  • whether in case of a technical defect sufficient safeguards are in place to prevent the drone from falling from the sky and injuring or killing a person on the ground; and
  • whether in the event of loss of contact between the drone and the control station, automatic functions can be activated to remedy the situation.

For drones heavier than 30kg an operation authorisation is necessary. FOCA specifies the requirements for authorisation and the operating conditions on a case-by-case basis.

Regardless of the weight, the Standardised European Rules of the Air(5) also apply to the operation of drones in Swiss airspace. However, if the drone weighs less than 30kg, the rules with respect to minimum flight altitudes do not apply.

Again regardless of the weight, no additional authorisation is required from FOCA if the drone is used commercially. The Swiss regulatory framework applies to both commercial and non-commercial operations, as an identical drone may be used for both with the same risk to uninvolved parties.

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

Drones pose new challenges in relation to privacy and data protection. For instance, they may carry video cameras. These images can be easily recorded and stored, and are often uploaded onto the Internet. The right to private life and property can be interfered with and violated when drones capture images of people in their houses and gardens.

A series of other applications and payloads can also be installed on drones, allowing the gathering and processing of personal data and seriously interfering with and potentially violating citizens' rights to privacy and data protection.(6)

In respect of images, the Aviation Ordinance provides that the recording of images taken from the air, as well as their distribution, is permitted (provided that requirements can be made to protect military infrastructure). The ordinance does not treat images captured by drones any differently from those taken from manned aircraft. However, the capturing of data and images by drones may fall under the remit of Swiss data protection laws, including the Federal Data Protection Act,(7) the Federal Data Protection Ordinance(8) and cantonal laws.

Organisations that operate drones in public places to capture data and images, such as the police, media entities and constructions companies, must ensure that they comply with data protection laws. The same holds true for hobbyists and other individuals, who must adhere to fair-processing requirements when capturing data and images which can identify individuals. In many cases this means that they need to obtain the individual's consent to capture such footage.

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

The Ordinance on Special Category Aircraft provides that while drones are under no obligation to take off or land at an airport, affected land owners are entitled to prevent trespassing and to compensation for any damage.

Pursuant to the Civil Code, land owners have rights over their land to such a height as is necessary for the ordinary use and enjoyment of the land and the structures upon it. The maxim that 'the owner of the land owns it up to the heavens' does not apply.

According to Swiss case law a manned aircraft that does not fly at a reasonable height can have an action brought against it to redress any harm arising from the use of the airspace over the property. In order to be actionable, the conduct must amount to an excessive interference, for example, due to excessive noise or other disturbing effects, as judged by the courts.

While we are unaware of any specific Swiss case law relating to drones, a land owner may lodge an action against excessive interference on his or her property arising from an unreasonable use of drones.

What are the insurance implications in your jurisdiction?

EU Regulation 785/2004(9) describes the insurance obligations for all aircraft operators. It requires that all commercial drone operations purchase third-party liability insurance. The regulation defines limits for the minimum amount of third party liability insurance required based on the mass of the aircraft at take-off. For drones weighing less than 500kg the minimum cover required is 750,000 special drawing rights (approximately Sfr1 million).

While model aircraft, including drones for leisure use, weighing less than 20kg are not required to have third-party liability insurance on the basis of EU Regulation 785Ӏ2004, the Swiss Ordinance on Special Category Aircraft provides that liability claims made by third parties on the ground must be covered by an insurance policy with guaranteed cover of at least Sfr1 million. Only drones weighing less than 0.5kg do not require third-party liability insurance.

The Ordinance on Special Category Aircraft further provides that the insurance certificate must be carried when the drone is in operation.

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

Pursuant to the Aviation Act, the operator of the drone is strictly liable without limitation for all surface damage caused by the drone. If the drone was used by a third party without the operator's permission, such third party will be liable. Nevertheless, the operator (or rather its insurer) will still have to provide the minimum insurance coverage, as laid down in EU Regulation 785/2004 and the Swiss Ordinance on Special Category Aircraft.

For further information on this topic please contact Andreas Fankhauser or Vanessa Wehrli at Baumgartner Mächlerby telephone (+41 44 215 4477) or email (afa@bmlaw.ch or vh@bmlaw.ch). The Baumgartner Mächler website can be accessed at www.bmlaw.ch.

Endnotes

(1) EU Regulation 216/2008 (February 20 2008) on common rules in the field of civil aviation and establishing a European Aviation Safety Agency. Switzerland adopted Regulation 216/2008 by virtue of the 1999 EU-Switzerland Agreement on Air Transport.

(2) According to the European Aviation Safety Agency, drones are aircraft without a human pilot on board, whose flight is controlled either autonomously or under the remote control of a pilot on the ground or in another vehicle.

(3) *Verordnung des Schweizerischen Bundesrats über die Luftfahrt*.

(4) *Verordnung des Eidgenössischen Departements für Umwelt, Verkehr, Energie und Kommunikation UVEK über Luftfahrzeuge besonderer Kategorie*.

(5) Commission implementing EU Regulation 923Ӏ2012 (September 26 2012) laying down the common rules of the air and operational provisions regarding services and procedures in air navigation.

(6) European Parliament, Privacy and Data Protection Implications of the Civil Use of Drones, at page 7.

(7) *Bundesgesetz über den Datenschutz*.

(8) *Verordnung zum Bundesgesetz über den Datenschutz*.

(9) EU Regulation 785/2004 (April 21 2004) on insurance requirements for air carriers and aircraft operators. Switzerland adopted Regulation 785/2004 by virtue of the 1999 EU-Switzerland Agreement on Air Transport.

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Authors

Vanessa Wehrli

Vanessa Wehrli