Drones - A New Frontier of Privacy and Liability is Taking Flight

Drones, or unmanned aerial vehicles (“UAVs”), are becoming more prevalent both as a recreational activity and as a tool for businesses. As UAVs are increasingly being used by hobbyists and businesses alike, the legal landscape of privacy and liability will change.

UAVs are piloted remotely and have a wide range of models, spanning from simple recreational aircraft that have a relatively small flying radius to large complex units that can carry cargo over long distances. Some UAVs have been developed to be ‘autonomous aircraft’, where technology has advanced to a point where these UAVs can make their own decisions, communicate with other UAVs and aircraft, determine their own flight paths, and even coordinate logistics.

When and Where Can I Fly?
Aeronautics falls under the scope of the Federal Government and, as such, Transport Canada has primary jurisdiction over UAV regulation, which is found under the Canadian Aviation Regulations. The Transport Canada website is an excellent resource for general UAV information, including flight restrictions.

If your UAV weighs 35 kg or less and is used only for recreational purposes, you are not required to obtain special permission to fly. However, if you are using a UAV for business or research purposes or it exceeds the 35 kg weight limit, you will be required to obtain a Special Flight Operations Certificate (“SFOC”). This Certificate acts as a roadmap for how and where you can use your UAV. SFOCs do not come in a standard form and are tailored to each individual request. Generally, an applicant will be required to provide information such as the purpose of the UAV operation, the date and time parameters for the UAV operation, a detailed operations plan, including contingencies and security details, and details of insurance coverage.

Applications that have potentially serious consequences or that violate flight restrictions must be more comprehensive and in-depth. For example, UAVs operating in areas with large crowds of people have the potential to cause bodily harm. Furthermore, UAVs operating near power lines, airports, or other essential infrastructure have the potential to cause catastrophic events (e.g., fires and plane crashes).

Transport Canada has set out UAV flight restrictions where, unless dictated otherwise in the SFOC, you cannot fly your UAV:

• Closer than 9 kilometres to any aerodrome (airport, heliport, helipad, etc.)
• Higher than 90 metres above the ground
• Closer than 150 metres to people, animals, buildings, structures, or vehicles
• In populated areas or near large groups of people, including sporting events, concerts, festivals and fireworks shows
• Near moving vehicles, highways, bridges, busy streets, or anywhere you could endanger or distract drivers
• Within restricted and controlled airspace, including near or over military bases, prisons, and forest fire
• Anywhere you may interfere with first responders

These restrictions may be altered or lifted depending on the parameters of your SFOC. If you are flying your UAV recreationally, you must ensure you adhere to the above guidelines. Otherwise, you risk up to $25,000 in fines and/or jail time. In addition to the UAV regulations, operators must comply with other applicable laws and regulations, including the Criminal Code.

Possible Sources of Liability?
As mentioned above, breaching UAV regulations can come with hefty fines and potential jail time. However, those are not the only laws UAV operators should be concerned about. As technology continues to expand, there is an increased risk for civil liability of UAV operators, including trespass, negligence, and privacy breaches, any of which can lead to damages arising from private lawsuits.

The Criminal Code is applicable if a UAV is operated in a manner that is dangerous to the public: section 249. If your UAV causes injury or death, further sections of the Criminal Code may be applicable. In Alberta, the Trespass to Premises Act and Petty Trespass Act provide additional sources of liability for entering certain types of property without express permission of the owner.

The advent of new technology allows cameras, infrared sensors, and other means of capturing imaging from angles that previously were not possible. While this ushers in a new era of development and progress, it brings with it concerns over privacy breaches. UAVs can breach privacy expectations by taking photographs and videos in circumstances where individuals have a reasonable expectation of privacy. The seminal case of Jones v. Tsige, in the Ontario Court of Appeal , recognized the existence of the tort of invasion of privacy: “intrusion upon seclusion”. Operators should be especially careful if they are using UAVs to capture images that will be published or distributed.

To avoid potential liability for breaches of privacy and trespass, UAVs should not be operated in circumstances where they may be considered to be trespassing or, if UAVs are capturing images over long distances that would breach an individual’s reasonable expectation of privacy.

How Do I Protect Myself?
UAVs have the potential to cause property damage and bodily injury. You will want to ensure that the operation of a UAVis covered under personal property in your homeowners insurance and is not excluded within the definition of ‘aircraft.’ Insurance companies are starting to craft, and some currently hold, specific liability policies to provide coverage for the use of UAVs. This liability coverage is required before an SFOC will be issued. Before assuming your UAV is covered under your business or home insurance, it will be necessary to review your policy to ensure there are no exclusions.

When operating an UAV, make sure that you are adhering to the flight restrictions provided in your SFOC and ensure that you are complying with all applicable regulations. If you are taking photographs or imaging, operators should ensure the proper consents are in place so that there are no privacy breaches. Also ensure that you do not operate in or over property without the permission of the owner.

We would be happy assist you with ensuring you have the appropriate liability coverage in place, applying for SFOCs, and providing advice and representation relating to UAVs and liability. Have a safe flight!