DLA Piper Drones Presentation 25 January 2016

www.dlapiper.com 0Monday, January 25, 2016

Monday, January 25, 2016

LEGAL ISSUES - DRONES IN UAEEamon HolleyLegal Director, Dubai


1 Context 3

2 Some legal issues 8

3 Annex A: the small print 21

Agenda


One of the largest international law firms

Offices in each GCC country, 100+ lawyers

Tier 1 Technology, Media and Telecoms legal practice in the Middle East

Team of recognised experts in our respective fields, including telecoms, technology, media, outsourcing, intellectual property

Legal 500; Chambers and Partners; Who's Who Legal

Introduction – who we are

Eamon HolleyLegal Director

T: +971 4438 [email protected]

Mohamed MoussallatiLegal Consultant

T: +966 11 [email protected]

Context


Dubai Smart City

AED 2 billion innovation fund

UAE's National Innovation Strategy

– 7 sectors - renewable energy, transport, education, health, technology, water and space

– 4 tracks:

1. New and amended legislation

2. Develop government innovation by new practices, reduce spending by 1% and use it on research and innovations

3. Encourage private sector innovation to establish research centers, adopt new tech, develop new products and services

4. Education

Innovation


Pro's

‘‘ Drones can capture clear images of crowds during sporting events, thus preempting any misconduct and putting an end to incidents of stadium violence

Brigadier Ahmad KhalfanAl Mansouri

’’

Advancing technology

Affordability and availability

Uses

– crime fighting and civil services (Dubai/Abu Dhabi Police)

– surveillance (e.g. Dubai Customs)

– conservation (Wadi Wurayah – "Wadi Drone")

– commercial

– recreational


safety

– collision with persons, property, vehicles, aircrafts

citizen concerns

– invasion of privacy and family life

– collection of images (surveillance, monitoring, mapping and video recording)

economic

– commercial aircraft disruption/delays

– reports: air traffic at Dubai Airport brought to standstill

environmental

– noise pollution in previously unaffected areas

security

– used as weapons, delivery of weapons etc.

and Con's…..

‘‘ Flying drones fitted with cameras in residential areas is a punishable offence as per the Federal Criminal Code. Such acts breach privacy of people and threaten their lives..

Brigadier General Mohammad Nasser Al Razzuqi,

Asst Director-General of the Department of Transport and Rescue, Dubai Police

’’

Some legal issues


Just a few issues to consider…

Drones

GCAA regulation

Disruption to Commercial Air Services

Privacy

Risk of Injury/

Property Damage

Allocation of

Liability

Employer Vicarious Liability

Accident/ Incident

Reporting

Insurance


Private use:

Commercial / State use:

GCAA Registration and Approvals

Cat. 1A (5kg and less) Cat. 2A (more than 5kg and less than 25kg)

Cat. 3A (25kg or more)

GCAA registration > ½ kg GCAA registration (all) + form + security clearance before operation

GCAA registration (all) + form + security clearance before operation, applicant ≥ 21 years of age

Cat. 1B (5kg and less) Cat. 2B (more than 5kg and less than 25kg)

Cat. 3B (25kg or more)

GCAA UAS registration + GCAA e-service UAS operating approval + GCAA security approval when equipped with camera/scanning/surveillance equipment




Disruption to commercial aircraft services

GCAA UAS Regulations (2015) - Operation of Unmanned Aerial Systems (UAS) within the UAE

Category 1A

– no operation within 5km of UAE airport outer fence, heliports, helicopter landing sites, airfields and clear of control zones

All categories (1, 2 and 3, A and B)

– not in Controlled Airspace

– give way to other aircrafts, landing on hearing/sight of other aircrafts

– avoid collisions

All commercial categories (1B, 2B and 3B)

– up to 4,500ft AGL

– segregated areas (+ GCAA UAS approval and segregated airspace approval)


Civil Aviation Law (1991)

Aircraft equipped with aerial photographic apparatus shall not fly over the UAE, without prior authorisation of appropriate authorities (Article 9)

GCAA Regulations (April 2015) (Operation of Unmanned Aerial Systems (UAS) within the UAE)

Private use

no use of video/image capturing devices

no harassing of others

no operation on "congested areas" (without GCAA permission): "any area of a city, town or settlement which is substantially used for residential, industrial, commercial or recreational purposes"

Commercial use

GCAA security permission before using camera or other scanning/surveillance equipment

Privacy


Privacy Penal Code (1987)

offence to "prejudice the privacy of [an] individual or family life"

– eavesdropping, recording or transmitting a conversation in private place

– taking or transmitting "by any device of any kind whatsoever a photo of a person in a private place"

Copyright Law (2002)

prohibits "keeping, showing, publishing or distribution" of photographs of others without consent

limited exceptions (provided no prejudice to individual(s) suffered):

– publication relates to public events

– photograph pertains to persons of official/public capacity or celebrities

– permission by authorities in public interest


Privacy Cyber Crime Law (2012)

Using a computer network or electronic information system or any IT means for the "invasion of privacy of another person" (unless permitted by law) as follows:

– eavesdropping, interception, recording, transferring, transmitting or disclosure of conversations or communications, or audio visual materials;

– photographing others or creating, transferring, disclosing copying or saving electronic photos;

– publishing news, electronic photos, scenes, comments, statements or information even if true and correct


Injury to the public/property damage

UAE Civil Code (1985)

- liability to make good harm

– "No harm shall be done, nor harm done in return" (Art. 42)

– "Harm shall be made good" (Arts. 42 and 282)

– Compensation for harm suffered = natural result of harmful act (Art. 292)

– Obligation to make good damages to property (in kind or pay value) (Art. 300)


Allocation of liability: Who's to Blame?

Remote pilot?

GCAA UAS Regulations (2015)

– Remote pilot responsible for avoiding collisions, and shall not harass/endanger people/threaten to damage property

Manufacturer?

Terms and conditions? Exclusions of liability for damage/death/injury

UAE Civil Code, Art. 296:

– "Any condition purporting to provide exemption from liability for a harmful act shall be void."

Employer?

Vicarious liability for actions of employee


Vicarious liability

Potential application to drone operators and employees

UAE Civil Code (Article 313(1)(b))

– person (X) may be liable for actions of another person (Y)

– X has actual control over Y by way of supervision and direction

– Y has caused damage

– Y is subordinate to X in or by reason of execution of his duty

– "but for" test: Dubai Court of Cassation case (2006)


Vicarious liability: "but for"Dubai Court of Cassation case (2006)

pizza restaurant vicariously liable for employee

employee assaulted child on delivery shift

– decision:

– employee and pizza restaurant liable

– "but for" the deliveryman being employed to deliver pizzas, he would not have been able to perform the harmful act

– attack occurred during course of employment

UAE = civil law jurisdiction

no judicial precedent

judge's discretion

DIFC

employer liable for act of employee in course of employment

UNLESS employer shows reasonable steps taken to prevent these acts or them from doing it in the course of employment


Accident andSerious Incident Reporting

Accidents/incidents to be reported to GCAA:

Report of Safety Incident (ROSI) (GCAAwebsite)

serious incidents: 24 hour telephone line to GCAA Investigator

Incidents:

crashes resulting in injury/fatality to a person/damage to property

near misses with manned aircraft/UAS

collisions with buildings/structures

operation without appropriate GCAA approval

penetrates controlled airspace (without ATC approval) or no fly zone

photograph without security approval

operation causing public nuisance


GCAA UAS Regulations (2015)

"The progressive integration of UAS into the national airspace must be accompanied by reassurance to citizens on the development of measures to address societal concerns including ….third-party liability & insurance…."

No explicit insurance obligations in GCAA UAS Regulations (2015), but insurance obligations do exist for non Model Aircraft with a MTOM of greater than 20kg, so arguably would apply to drones that have a MTOM of 20kg and above.

In any event must be mindful of insurance required by CAAs as well as obtaining insurance that can cover other liabilities

Insurance


Penalties

ConfiscationFinesImprisonment


Thank you.

Any Questions?

Annex A: the small print


GCAA Regulations (2015)

Operation of Unmanned Aerial Systems (UAS) within the UAE

In force: 13 April 2015

UAS classification

– mass (fuel, fixtures, payload, etc.)

– capability: higher performance (e.g. altitude) = greater regulation

– type of operator: private, commercial, government


Six classifications, three categories

Categories and classification

Category Mass User Subclass

1 5kg and less

A Private

B Commercial / State

2More than 5kg and less than

25kg

A Private


3 25kg or more

APrivate



"Private" vs. "Commercial / State Use"

"Private Use" = private leisure and sport purposes

"Commercial / State Use" = commercial purposes including but not limited to parcel delivery, surveillance, security/safety, environmental monitoring, etc.




Segregated areas (approved by GCAA), notin Controlled Airspace

Not in Controlled Airspace, within flyingclubs/allocated zone (unless otherwiseapproved by GCAA)


GCAA registration > ½ kg GCAA registration (all) + form + securityclearance before operation

GCAA registration (all) + form + securityclearance before operation, applicant ≥ 21years of age

Minimum equipment requirements (directradio control, frequency band restrictions), allcomponents in working order

Minimum equipment requirements (directradio control, frequency band restrictions)


Altitude not above 400ft + visual line of sight Altitude not above 400ft + visual line of sight Altitude not above 400ft + visual line of sight

No operation in congested areas and flyingover public/private properties

No operation near public/private properties No operation near public/private properties

No dropping of articles from UAV No dropping of articles from UAV No dropping of articles from UAV

No use of video/image capturing devices No use of video/image capturing devices No use of video/image capturing devices

Avoid collisions with people, property,aircrafts, etc. and not harass or endangerothers or their property



Only day time operation

No operation within 300m of any person(200m during take-off/landing), vessel,vehicle, structure

No flying within 5km of airport outer fence,helic. sites, etc., give way to other aircrafts,landing on sight/hearing

Private use (Category A)




Segregated areas (approved by GCAA), notin Controlled Airspace



GCAA registration > ½ kg GCAA registration (all) + form + securityclearance before operation

GCAA registration (all) + form + securityclearance before operation, applicant ≥ 21years of age




Altitude not above 400ft + visual line of sight Altitude not above 400ft + visual line of sight Altitude not above 400ft + visual line of sight

No operation in congested areas and flyingover public/private properties

No operation near public/private properties No operation near public/private properties

No dropping of articles from UAV No dropping of articles from UAV No dropping of articles from UAV

No use of video/image capturing devices No use of video/image capturing devices No use of video/image capturing devices




Only day time operation

No operation within 300m of any person(200m during take-off/landing), vessel,vehicle, structure

No flying within 5km of airport outer fence,helic. sites, etc., give way to other aircrafts,landing on sight/hearing

Private use (Category A)


Commercial / State Use (Category B)



Not in Controlled Airspace, permitted inUncontrolled Airspace up to 4,500ft AGL, insegregated areas subject to GCAA UASapproval and segregated airspace approval



GCAA UAS registration + GCAA e-serviceUAS operating approval + GCAA securityapproval when equipped withcamera/scanning/surveillance equipment





Minimum equipment requirements (directradio control, frequency band restrictions,transponder mode C), all components inworking order

GCAA security permission before usingcamera or other scanning/surveillance equip.






Give way to other aircrafts, landing onsight/hearing of another aircraft




Commercial / State Use (Category B)











Minimum equipment requirements (directradio control, frequency band restrictions,transponder mode C), all components inworking order











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DLA Piper Drones Presentation 25 January 2016

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