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Can you shoot down an intrusive drone?

  • Sweden
  • Technology, Media and Telecoms

15-09-2017

Some notes on the legal limitations for the use of UAVs in Sweden and how to enforce those limitations.

An unmanned aerial vehicle (UAV), commonly known as a drone, is operated with various degrees of autonomy: either under remote control by a person and/or autonomously by computers. Civilian UAVs now vastly outnumber military UAVs. Because these usually are equipped with cameras questions about integrity arises. Related to integrity issues people also wonder about the use of UAVs for commercial purposes. New forms and shapes of drones with various capabilities are flooding the market. Even different kinds of anti-drones (“drone defenders”) are now on the market.

There is legal uncertainty in Sweden regarding UAVs but we know certain things. The Swedish regulations regarding civil aviation (the Swedish Aviation Act) as well as ordinances issued by the Swedish Transport Agency apply. This means that the pilot must follow all applicable rules for aviation. Strict liability applies to aviation. For commercial operations, an additional set of specific rules apply which for all practical purposes mean that UAVs cannot be for used commercial purposes unless the UAV is clearly visible and can be safely manoeuvred by the human drone pilot.

If an UAV is capable of identifying a person then the Swedish Personal Data Act will govern issues regarding integrity. So, how much disturbance or intrusion must be tolerated when drones are flying in?

Camera surveillance is not allowed if considered “offensive” (Sw: “kränkande”). The regulations are based on a balance of interests; integrity versus other interests. For example, the use of a drone to observe people without them knowing is clearly offensive.

What kind of flight operations are legal? In addition to the general ordinance governing UAVs (Act TSFS 2009:88) according to which a permit is required for commercial use, also an additional permit may be required from the Swedish Mapping, Cadastral and Land Registration Authority (SFS 2016:319). A main problem for the commercial drone pilot is that it is in practice not possible to obtain a permit to fly a drone unless it is kept within sight. This rule prevents lots of useful purposes.

Another legal obstacle is that yet another license is required if the drone is to be used for transport of goods. Such a permit requires the UAV to be manned which per definition is not the case.

The Transport Authority has recently proposed a lot of changes to the legislation including the possibility to permit flying out of sight with the aid of a ”sense and avoid” system but there is no (known) proposals in Sweden regarding permission to ship goods with an UAV.

So, if the use is not permissible, what can the offended person do about it? One may always report an incident to the Swedish Data Inspection which can decide on various measures. Exactly what those measures would entail is not clear. The individual responsible for the illegal use of the UAV can be liable to pay damages for breach of personal integrity. If the breach is material the use can also constitute a criminal offense punishable by fines or even prison. Hence, one could also report the incident to the police. For example, the Criminal Code makes ”Offensive photography” a crime.

But how can the individual in control of the drone be identified? And how should the police and enforcement agencies find out (some hours or months after the incident)? Is it allowed to snatch the UAV with, say a net (some anti-drones are equipped with nets), or a trained eagle (yes there are such eagles) in order to properly identify the UAV? Or could it be shot down? Could the offended person notify the neighborhood of his concern and his plan of action so as to create some sort of contractual limitation to flights over his property (like the sign over a parking space)?

The answer in Sweden is probably no. A private individual is not allowed to enforce the law. If the UAV is intentionally snatched this measure can constitute the criminal offence “Arbitrary conduct” (Sw: “Egenmäktigt förfarande). Also, the crime “Intentional infliction of damage to property” can be relevant. But what about self-defense and the right to protect life and property? Well, the right to use force can only be relevant when there is a risk for personal injury or loss or damage to property. If an UAV only circulates around without any risk of injuring any person or risking damaging property there is no right to use physical defensive force. If the UAV comes charging in, then the use of force would be acceptable, as would the case be if a person is attacked by a person or an animal. It is perhaps a possibility that a fair warning given to a potential drone pilot “trespasser” might have some legal effect but one of the problems for the disturbed homeowner is that he or she has no exclusive right to the airspace. So there is a lot of unchartered space for the drones also from a legal perspective.