14.1 Introduction

Innovation and digitalisation are perceived as an enabler of growth and a catalyst for the development of modern aviation in Europe.Footnote ¹ In the view of the European Commission ‘drones are a technology that is already bringing about radical changes, by creating opportunities for new services and applications, as well as new challenges’.Footnote ² As it stated in the title of the Communication from the European Commission to the European Parliament and the Council, opening the aviation market to the civil use of drone technology marks ‘[a] new era for aviation’.Footnote ³ A similar view of drone technologies is shared by other countries.Footnote ⁴

Indeed, the commercial drone industry has flourished in recent years, and the technology, which a few decades ago was exclusively a part of modern military equipment, became available to the general public. The number of drone operations in Europe alone has already come close to manned aviation.Footnote ⁵ Drones are widely used by various state authorities, as well as commercial entities and private persons for purposes as diverse as policing, search and rescue, environment monitoring, film-making, mapping, agriculture, and entertainment.

Drones are undoubtedly very useful and represent tremendous opportunities. With evolving drone technologies various new business models emerge, such as parcel delivery by air, aerial photography, air taxis, and drone journalism. Drones offer new services and applications going far beyond traditional aviation and allow us to perform existing services in a more affordable and environmentally friendly way by increasing the efficiency of different activities. In addition, drones are hard to replace, especially in difficult situations; for example, when restoring communications or carrying out search and rescue missions after natural disasters. Even the pandemic caused by the COVID-19, when physical contact was restricted, became an opportunity to demonstrate the extremely wide range of possible drone applications and promote their use in everyday life, seeking a more positive public attitude towards the application of drone technology.Footnote ⁶ In principle, the capabilities of drones are almost limitless, making them applicable in any field.

However, among other reasons, to meet safety requirements, modern drones as a rule are equipped with high-end technologies, which can capture, store, and upload online or to other devices huge amounts of data, including private data. Drones can range in size from being big enough to carry a human to as small as a hummingbird, and very quiet, making them extremely hard to notice. In addition, drones are piloted remotely or, in some cases, using advanced artificial intelligence (AI) technology that is able to develop flight patterns with the only human input specifying the destination,Footnote ⁷ which makes it very hard to trace the actual drone users.Footnote ⁸ Therefore, with the use of drones private data can not only be easily accessed and collected in areas where people reasonably expect privacy, but it can also be achieved anonymously. Hence, along with all the new possibilities and benefits, the massive deployment of drones in public life also bring serious privacy issues, as drones like any other technology can be misused. According to Zuboff, in the absence of countervailing restrictions and sanctions, every digital application that can be used for surveillance and control will be used for surveillance and control, irrespective of its original intention.Footnote ⁹ Therefore, emerging drone technology requires an appropriate legal response, as it is impossible to disinvent the technology – drones are here to stay.

Privacy is a constitutional value recognised in the vast majority of countries. According to Privacy International, one of the world’s major watchdogs on surveillance and privacy, over 130 countries in every region of the world have constitutional statements regarding the protection of privacy.Footnote ¹⁰ The right to privacy is also enshrined in major international and regional human rights documents (conventions, declarations, charters, etc).Footnote ¹¹ Although legal scholars often acknowledge that drones pose a serious threat to privacy, in making such a conclusion they simply presume the potential dangers, usually limiting themselves to a few examples, but do not discuss in more detail the privacy violations that the use of drone technology can cause.

A deep understanding of drone related threats to privacy, the diverse ways that drone technology can affect privacy, the way it can interfere with other human rights, the various restrictions to drone use that may be implicated, and the need to mitigate these tensions by maintaining the right balance together form the cornerstone to ensuring the successful integration of drones in modern society. Therefore, the aim of Section 14.2 is to present a broader discussion of the major privacy concerns arising from the mass introduction of drones into everyday life,Footnote ¹² provide a more detailed description of the relevant threats, as well as to highlight possible clashes between privacy and other human rights invoked by the use of drone technology, emphasising the need to strike a fair balance between these conflicting values. In Section 14.3, the current regulatory developments on drone technologies in relation to identified human rights concerns are analysed, focusing primarily on the European context and seeking to determine the main shortcomings that must be rectified in order to effectively manage the threats associated with the use of drones.

14.2 Drones and Their Use: Major Privacy Concerns and Other Human Rights Issues

Article 7 of the Charter of Fundamental Rights of the European Union (the Charter) holds that everyone has the right to respect for his or her private and family life, home, and communications. While Article 8 of the Charter enshrines protection of personal data, stating in its first paragraph that everyone has the right to the protection of personal data concerning him or her. The Court of Justice of the European Union (CJEU) when applying Articles 7 and 8 of the Charter has noted on numerous occasions that Article 7 of the Charter, regarding the right to respect for private and family life, contains rights corresponding to those guaranteed in Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and that the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the ECHR. In accordance with Article 52(3) of the Charter, Article 7 of the Charter is thus to be given the same meaning and the same scope as Article 8(1) ECHR, as interpreted by the case law of the European Court of Human Rights (ECtHR).Footnote ¹³ The same is true for other rights protected by the Charter which correspond to rights guaranteed by the ECHR. Therefore, the CJEU often relies on the jurisprudence of the ECtHR when interpreting the meaning and the scope of the rights recognised by the Charter. Nevertheless, this provision does not prevent EU law providing more extensive protection.

The ECtHR has emphasised in its case law that the concept of private life extends to aspects relating to personal identity, such as pictures of a person.Footnote ¹⁴ A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development.Footnote ¹⁵ It primarily presupposes the individual’s right to control the use of that image, including the right to refuse its publication, which is also relevant for publications online.Footnote ¹⁶ And namely in the light of drone technology, the most evident threat to privacy is when using a drone equipped with a camera, which usually comes as a standard element of drone equipment and is able to capture images (photographs and videos).

The right to one’s image is recognised virtually worldwide as a part of the right to private life or regarded as a separate right with a special provision in national laws to protect it; nevertheless, it is closely related to the right to respect for private life.Footnote ¹⁷ Therefore, the unlawful surveillance of a person and recording, collecting, processing, or using that data may lead to the violation of his or her right to privacy. As evident from the jurisprudence of the ECtHR, everyone, including people known to the public, has a legitimate expectation that his or her private life will be protected.Footnote ¹⁸ However, a person’s reasonable expectation of privacy is a significant though not necessarily conclusive factor, since there are occasions when people knowingly or intentionally involve themselves in activities that are or may be recorded or reported in a public manner.Footnote ¹⁹ Therefore, there are a number of elements relevant to the consideration of whether a person’s private life is concerned by measures effected outside a person’s home or private premises.Footnote ²⁰ As a result, according to the ECtHR, it is relevant if the surveillance exceeded an extent of exposure possible to a passer-by or to security observation and beyond a degree surpassing that which the individual could possibly have foreseen.Footnote ²¹

In this sense the use of drones in the light of the right to privacy is quite problematic. Drones can be very small and quiet, and so hard to detect, and the ever-decreasing size of various drone components constantly leads to less detectable devices. Owing to these features, people may often not be aware of being surveilled; among other issues, it creates opportunities for more frequent voyeuristic attacks. Drones can also be very light and easy to carry, they can take off quickly and almost from anywhere, usually there is no need for lengthy preparation and/or special take-off and landing sites. In addition, they are relatively cheap. These are definitely the advantages of drones in comparison with conventional aircraft, as they make aerial surveillance, which was previously quite expensive and usually available only to state authorities, easily accessible to everyone. However, this poses a serious challenge to ensuring adequate protection of the right to privacy because it may lead to systematic mass surveillance, which can in turn cause serious negative psychological consequences in society by making people feel less free and force a sort of self-censorship by restricting their behaviour.

Private life, in the ECtHR’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the ECHR is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.Footnote ²² There is therefore a zone of interaction with others, even in public contexts, which may fall within the scope of private life.Footnote ²³ The ECtHR, for example, has found video surveillance of public places where the visual data are recorded, stored, and disclosed to the public as falling under Article 8 of the ECHR.Footnote ²⁴ According to the ECtHR, although monitoring the actions of an individual in a public place using photographic equipment that does not record the visual data does not, as such, give rise to an interference with the individual’s private life,Footnote ²⁵ the recording of the data and the systematic or permanent nature of the record may give rise to such considerations, regardless of whether the surveillance is covert or overt.Footnote ²⁶ Therefore, the ECtHR has concluded that the compilation of data by security services on particular individuals, even without the use of covert surveillance methods, constitutes an interference with the applicants’ private lives.Footnote ²⁷ This comes in line with ‘mosaic theory’, developed in light of the Fourth Amendment to the US Constitution.Footnote ²⁸ According to this theory, a certain amount of data as an aggregated whole can implicate reasonable expectations of privacy even though the separate constituent parts of such data do not.Footnote ²⁹ Hence, it is evident that private life is a broad term ‘not susceptible to exhaustive definition’.Footnote ³⁰

Threats posed by drones equipped only with sound recorders and no ability to capture video or images should also not be neglected, as they can secretly listen to and record private conversations. Moreover, modern technologies make it possible to perform a sort of human profiling based on timbre and other voice characteristics and/or identify a particular person (i.e., a speaker) using voice recognition technology.Footnote ³¹ Accordingly, voice recordings, as well as images in the case of facial recognition, can be further processed into biometric data using advanced technologies, which makes it possible to relate real people with their profiles in the digital domain. Such unforeseen use of photographs, videos, and sound recordings can constitute an interference with the right to private life.Footnote ³² In the ECtHR’s view, the rapid development of increasingly sophisticated techniques allowing, among other things, facial recognition and facial mapping techniques to be applied to individuals’ photographs without a doubt amounts to interference with his or her right to private life within the meaning of Article 8 § 1 of the ECHR, which makes the taking of their photographs and the storage and possible dissemination of the resulting data problematic.Footnote ³³ Therefore, recording and storing voices may also in itself constitute an interference with the right to private life. As the ECtHR has ruled in the case P. G. and J. H. v. the United Kingdom (§ 59–60), the recordings taken for use as voice samples cannot be regarded as falling outside the scope of the protection afforded by Article 8 of the ECHR.

The risk of interference with the right to privacy may arise not only when photographing and/or filming individuals but also their private property.Footnote ³⁴ Even when such images (e.g., of an enclosed courtyard) are not related to an identified or identifiable natural person, it may still infringe one’s privacy, as the right to respect for private life also includes the inviolability of the home. While drones can easily overcome fences of any size and construction or even fly inside buildings,Footnote ³⁵ where persons reasonably expect to maintain their privacy, the inviolability of the home gains even more significance.Footnote ³⁶ In addition to this, cameras used in modern drones have advanced optical and digital zoom capabilities, which make it possible to capture high resolution images from a long distance.Footnote ³⁷ Combined with advanced infra-red, radar, laser, holographic, computer, and other technologies and theoretical scientific knowledge, drones equipped with high zoom cameras enable to form a detailed spatial (3D) projection from captured data, revealing in detail the geometric, physical, and other properties of objects and their interrelationships.Footnote ³⁸ Furthermore, this feature (high zoom capability) is also an issue in relation to privacy concerns as far as it helps to maintain the secrecy of surveillance by facilitating a large distance from the subject of interest, in addition to the anonymity of the drone pilot owing to remote control. In turn, the individual not being aware of ongoing surveillance is one of the most significant challenges to privacy in relation to drones, when either way the actual transgressor (pilot) may remain anonymous.

Drones can capture and store a great variety of data – beside sound recordings and standard images (photos or videos), drones can also capture thermal images, geo-location and geo-spatial data, which poses no less threat to privacy than the former. For example, thermal image technology makes it possible to see through walls, obtaining an image of people and objects inside buildings without even entering.Footnote ³⁹ In this respect, for example, the Supreme Court of the United States in the case Kyllo v. US (2001) has ruled that the use of such technology to capture the internal thermal image of a person’s home constitutes a search within the meaning of the Fourth Amendment to the United States Constitution.Footnote ⁴⁰ It may also be concluded from ECtHR jurisprudence that sophisticated surveillance methods with enhanced video monitoring capabilities, such as thermal imaging, infra-red, or night vision, will likely interfere with Article 8 of the ECHR, as they surpass the ordinary surveillance measures available to the general public and thus exceed reasonable expectations of privacy in certain circumstances (making individuals exposed in an unforeseen way).Footnote ⁴¹

Most basic modern drones also have Global Positioning System (GPS) functionality, accelerometers, inclinometers, and other sensors necessary for safe drone operation and the functioning of such features as ‘return home’, ‘follow me’, and so on.Footnote ⁴² Meanwhile recording the GPS data makes it possible to track a person’s movement and can interfere with the right to private life, especially in conjunction with other captured data (e.g., images).Footnote ⁴³ In fact, GPS coordinates are often automatically assigned to images (photos and videos) taken by drones as metadata, making it possible to identify the specific location they were captured. This is a clear example of how new data (in a qualitative sense) can be created by combining various pieces of data, especially with the use of AI-driven data mining and data harvesting techniques, which make it possible to unearth new interesting and unexpected patterns and relationships between existing, at first sight completely unrelated, data by discovering the missing details of the information and linking such data in a logical way, creating a detailed picture of the subject under study. As Gray and Citron have noticed, ‘technological advances have made it possible for public and private actors to watch us and to know us in ways that once seemed like science fiction’.Footnote ⁴⁴ In this regard, the aforementioned mosaic theory becomes significant. The CJEU also shares this view and emphasises that various data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as their everyday life habits, permanent or temporary places of residence, daily or other movements, activities, their social relationships, and the social environments they frequent.Footnote ⁴⁵

With advanced computer programs and AI technology, besides providing such functions as face recognition or identification of vehicle licence plate numbers or autonomously tracking the target, drones can also perform many other tasks; for example, intercept or block mobile communications,Footnote ⁴⁶ recognise and scan radio-frequency identification (RFID) tags (i.e., information stored in them), which form the basis of various identification methods (identity cards, pass cards, etc.),Footnote ⁴⁷ and much more. However, drones can be hacked and intercepted themselves, making it not only possible to use them for the unlawful collection of private data by taking over their control, but also to retrieve the data already stored in the drone’s internal memory. Therefore, despite the fact that personal data may sometimes be gathered by drones lawfully, it is necessary to subsequently ensure adequate protection of such data. However, the cybersecurity of drones is questionable,Footnote ⁴⁸ especially if even state-of-the-art military drones can be hacked.Footnote ⁴⁹ This low level of cybersecurity poses a threat to drone technology itself, as it can erode public confidence in such technology, and drones, which are now rapidly gaining popularity among modern society, may no longer look so attractive.Footnote ⁵⁰

By using a well-established wireless (mobile) network, drones are able to transmit captured data directly to other devices (including other drones), upload the data online, or simply broadcast publicly over the internet, including through popular social networks and other platforms. Similarly, drones connected to a mobile network can download data from various databases and combine it with real time surveillance data. Notwithstanding, storing and processing personal data relating to the private life of an individual also falls within the right to privacy.Footnote ⁵¹ This raises another issue regarding the cross-border exchange of data,Footnote ⁵² while at the same time ensuring adequate protection of personal data.Footnote ⁵³

The ability of drones to communicate (interact) with each other makes it possible to form an interoperable drone swarm, making it possible to monitor multiple targets at the same time and/or maintain continuous long-term aerial surveillance using different drones in shifts. This kind of communication, as part of the Internet of Things, has led to the emergence of the terms Internet of Drones or Internet of Drone Things.Footnote ⁵⁴ As the President of the European Commission, Ursula von der Leyen, has stressed in her political guidelines for 2019–24, the Internet of Things (thus, also the Internet of Drones) is connecting the world in new ways, as physical devices and sensors are now linking up with each other so that huge and increasing amounts of data are being collected; although data and AI are ingredients for innovation, in order to release that potential it is crucial to balance the flow and wide use of data while preserving high privacy standards, as well as ensuring safety and security.Footnote ⁵⁵ This is a serious issue because combining drones with huge databases and aggregation software controlled by private entities may lead to significant shifts in the distribution of power in society, creating powerful private entities that can tend to abuse the available data. The AI technology used to manage such data can also lead to discrimination by misinterpreting individual behaviour and creating prejudices.

Technological development in recent decades has been notably moving towards higher levels of automation in various areas, including air transport.Footnote ⁵⁶ Automation plays an ever-increasing role in aviation, where many processes are in fact already entrusted to technologies capable, for example, of keeping an aircraft on course, identifying conflicting traffic, proving resolution advisories to avoid potential mid-air collisions, plotting and executing optimal descent profiles, and in some cases even controlling aircraft take-off or landing, with the pilot becoming a simple observer of these high-end systems.Footnote ⁵⁷ Accordingly, aviation is increasingly focusing on the application of AI technology in the air transport sector,Footnote ⁵⁸ including, for example, the use of passenger face recognition technology at airports to speed up the boarding process,Footnote ⁵⁹ or the automation of air traffic control to increase aviation safety, inter alia by safely integrating drones into the non-segregated airspace.Footnote ⁶⁰ As already mentioned, AI technology is widely used in drones themselves, with drones being regarded as high-risk AI systems.Footnote ⁶¹ This aspect of the digital transformation reflects the fourth industrial revolution, which is ‘characterized by a fusion of technologies that is blurring the lines between the physical, digital, and biological spheres’ and will change society in unpredictable ways.Footnote ⁶² In this regard the European Commission predicts that the use of drones is likely to grow significantly, as automation enables them to fly further, and declares that ‘European rules promote the sustainable growth of drone operations, paving the way for a digital future.’Footnote ⁶³

Unmanned aerial vehicles are exceptional in the sense that they are able to integrate many different modern technologies into a single whole, acting like a platform (base) that additionally gives wings to these technologies. Drones are essentially flying robots capable of capturing and processing extremely large amounts of various types of data, and this process can be more or less automated, which makes them perfect surveillance tools. Despite the fact that the majority of the technologies used in drones (e.g., cameras, sound recorders, GPS sensors) are not so new, and that therefore they are quite well known (including the threats they pose to privacy), drone technology (specifically, their ability to fly and the remote control option) brings these to the next level of danger, making private data, which is so valuable and often regarded as the new currency, more vulnerable than ever.Footnote ⁶⁴ Just as the emergence of instantaneous photographs in the gutter press was once seen as a game changer, requiring us to re-estimate the protection of the right to privacy in order to meet the demands of society,Footnote ⁶⁵ today drones invoke the same necessity owing to the increased scope of aerial surveillance they afford.Footnote ⁶⁶

Along with the mass introduction of drones in everyday life, sophisticated surveillance techniques emerge.Footnote ⁶⁷ Traditionally, the state was seen as the source of such surveillance concerns,Footnote ⁶⁸ but increased usage of modern technologies in public life (including the commercial drone industry) has created what Zuboff calls ‘surveillance capitalism’, which stems from the exploitation and control of human nature as private entities control most of the data.Footnote ⁶⁹ The immense deployment of drones in public life may lead to the so-called chilling effect on the fundamental right to privacy, creating a Panopticon environment, where individuals feel less free and may resort to self-preservation (self-censorship) by restricting their behaviour to avoid being watched even when no drones are in operation.Footnote ⁷⁰ This requires an appropriate legal response, especially in light of increasing public concerns regarding bulk interception.

However, some data is captured and processed by drones for safety and security reasons – modern drones inevitably must capture, store, and process some specific data in order to ensure their safe and secure integration into the non-segregated airspace and our everyday life. For example, it would be hard (if not impossible) to safely use a long-distance drone without a camera, gyroscope, GPS, and other modern sensors, especially when performing BVLOS flights.Footnote ⁷¹ Such sensors are also necessary for the proper functioning of Detect and Avoid technology, which can automatically avoid obstacles (including humans); therefore, requiring the drone to constantly monitor the surrounding environment and process that data in real time. GPS data is also crucial for the proper operation of the return home function, which can safely return a drone to its take-off or other pre-arranged location; for example, in case of the loss of the remote control or when the drone battery is running low. This is also necessary for the geo-fencing technology used in restricted areas for security reasons (e.g., above nuclear plants, military bases, government buildings, airports).Footnote ⁷² Therefore, aviation safety and security implications must also be taken into account when analysing the privacy concerns raised by the use of drones because the collection, processing, storage, and use of certain (private) data may inevitably be necessary.

Moreover, although increasing drone usage primarily raises privacy concerns, at the same time, drone technology creates new opportunities for diverse applications and services. Therefore, the restrictions imposed on their use in order to protect the right to privacy may interfere with other human rights, necessitating a fair balance to be struck between these conflicting values.

As already stated, evolving drone technologies have led to the emergence of new business models, such as parcel delivery by air and aerial photography. Accordingly, drones are now widely used in various professions, including estate agents, photographers, cinematographers, advertisers, and others. In this regard, Articles 15 and 16 of the Charter enshrine that everyone has the right to engage in work and to pursue a freely chosen or accepted occupation, and the freedom to conduct a business in accordance with the law is recognised. Freedom to choose an occupation and the right to engage in work is also recognised by other international human rights documents.Footnote ⁷³ Therefore, any restrictions on drone usage that affect professions dependent on this technology may be regarded as interfering with the freedom to choose an occupation, the right to engage in work, and the freedom to conduct a business.

Such restrictions may also interfere with the right to property, as protected by Article 17 of the Charter, Article 1 of Protocol No. 1 of the ECHR, among others. This is not only the case in the meaning of the use and peaceful enjoyment of drones themselves as physical possessions, but also in a broader sense. For example, the ECtHR has concluded in its case law that the economic interests connected with running a business include ‘possessions’ for the purposes of Article 1 of Protocol No. 1 of the ECHR, and maintenance of the licence can be regarded as one of the principal conditions for carrying on a business; thus its withdrawal could constitute interference with the right to the ‘peaceful enjoyment of [one’s] possessions’.Footnote ⁷⁴ This means that any legal regulation that may restrict the use of drones for business purposes in favour of the protection of the right to privacy, as a general (public) interest, must be reasonably proportionate to the aim sought. In other words, a fair balance must be struck between these conflicting values, and the requisite balance will not be found if the person or persons concerned have to bear an individual and excessive burden.

One profession that immediately took advantage of the emergence of drone technology is journalism, which is also closely related to the freedom of expression and the right to information.Footnote ⁷⁵ Article 11 of the Charter, Article 10 of the ECHR, and other human rights instruments protect the right to receive information without interference by a public authority regardless of frontiers.Footnote ⁷⁶ In light of this right, drone journalism becomes highly important, as drones allow reporters to access information in difficult and dangerous situations while maintaining a safe distance, such as in violent demonstrations, flooded areas, and the sites of other environmental disasters, where they could not otherwise be present or their presence would be of a very limited scope. Such an opportunity, besides helping to gather information, could also help promote human rights protection by documenting possible human rights violations (e.g., in war zones, during riots). Therefore, policies regarding the use of drones can be linked to the World Press Freedom Index and can be seen as a test of the freedom of expression, with top-ranked countries being the least restrictive about the use of drones and authoritarian countries completely prohibiting the journalistic use of this technology.Footnote ⁷⁷

Drone technology, as an instrument for remote observation, may also be relevant in the sense of the integration of persons with disabilities. Article 26 of the Charter states that the EU recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration, and participation in the life of the community. Article 27 § 1 of the Universal Declaration of Human Rights also recognises, that everyone has the right freely to participate in the cultural life of the community and to share in scientific advancement and its benefits. Meanwhile, drones equipped with cameras, microphones, and speakers in some cases may be regarded as one way (if not the only way) for people with movement disabilities to engage in public life (at least remotely) and interact with others.

However, the intrusive nature of drone surveillance discussed in Section 14.1 could also affect the freedom of movement of others protected by Article 45 of the Charter, Article 2 of Protocol No. 4 of the ECHR, Article 13 of the Universal Declaration of Human Rights, among others. In this regard it must be noted that constant surveillance caused by such digital interaction, could damage freedom of movement in the sense that it may lead to a chilling effect, when individuals feel less free and resort to a form of self-preservation (self-censorship) by restricting their behaviour and feeling forced to avoid such drone-filled public places.

Another important issue is the right to life:Footnote ⁷⁸ as already mentioned, drones inevitably must capture, store and process certain data owing to aviation safety and security considerations (see Section 14.1). The main aim of such aviation safety and security-based measures is not only to protect people in the air (e.g., crews and passengers of manned aircraft, against a collision with a drone), but also people on the ground (e.g., passers-by who may be injured by flying drones), as well as their property, which could be damaged or destroyed. A slightly more distant implication in this regard is related to drone usage during natural disasters and other difficult situations, when drone technology can be crucial in restoring communications and carrying out search and rescue missions, thereby saving lives.Footnote ⁷⁹

14.3 Developments of Drone Regulations: Maintaining the Balance between Conflicting Human Rights from a European Perspective

In recent years, the vast development of drone technology has led to the important evolution of legal regulation worldwide. However, standards set by individual countries could lead to a significant weakening of the protection of the right to privacy, given the possible diversity of views in relation to it. Hence, it is worth looking into EU drone regulation in more detail, as the EU is characterised by its integrative nature and declares the expressed aim of becoming a world leader in international aviation, a global model for the development of next-generation aviation technologies in full respect of fundamental human rights.Footnote ⁸⁰ It is clear from the jurisprudence of the ECtHR that when it comes to balancing competing values in relation to the use of modern technologies (e.g., in this case, drones), any state claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.Footnote ⁸¹ Accordingly, with drones considered to be the future of aviation,Footnote ⁸² there have been important developments in EU regulation in recent years.

In particular, the new Regulation (EU) 2018/1139 on common rules in the field of civil aviation was adopted (commonly referred to as the Basic Regulation), thereby also establishing an EU Aviation Safety Agency. It brought all aircraft, regardless of their operating mass, into EU competence. In other words, since the adoption of the Basic Regulation, all drones fell within the scope of EU regulation.Footnote ⁸³ This comes in line with the opinion of the European Commission, expressed earlier in its Communication to the European Parliament and the Council COM(2014)207 ‘A new era for aviation’, that rules allowing civil drone operations while guaranteeing at the same time the required high levels of privacy must be established at the European level, because such harmonised rules are seen as a necessary precondition for public (societal) acceptance of this disruptive technology.

Acknowledging public acceptance as key to the growth of drone services was also the standpoint of the European aviation community (which the European Parliament later agreed with and fully supported as one of the essential principles for future drone technology development),Footnote ⁸⁴ which pointed out in the 2015 Riga declaration that in order to achieve this public acceptance the respect of citizens’ fundamental rights, such as the right to privacy and the protection of personal data, must be guaranteed. The aviation community confirmed the importance of joint European action and stressed the necessity for European regulators to ensure that all conditions are met for the safe and sustainable emergence of innovative drone services, but at the same time highlighted that regulations must help the industry to thrive and adequately deal with citizens’ concerns. This point of view reflects the importance of striking a fair balance between different competing values.

Following the adoption of the Basic Regulation, which provided a mandate to the European Commission to adopt legislation in relation to the operation of unmanned aircraft, as well as requirements for their production and certification, the Commission delegated Regulation (EU) 2019/945 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems and the Commission implementing Regulation (EU) 2019/947 on the rules and procedures for the operation of unmanned aircraft were adopted and came into force, with the latter applied since 2021. In general, the Basic Regulation together with the aforementioned two regulations of the European Commission, brought in important changes regarding drone operations, especially in relation to the right to privacy. For example, the obligation was introduced to register drones and their users and to install direct remote identification systems in unmanned aircraft, it also established that courses and exams for remote pilots should include subjects on the right to privacy and data protection, with examination certificates valid only for a limited period of time (currently five years), which means that remote pilots will have to periodically renew their knowledge on this matter.

As pointed out in recital 28 of the Basic Regulation,

Therefore, it is enshrined in Annex IX to the Regulation (EU) 2018/1139, that unmanned aircraft and operations with unmanned aircraft must comply with relevant rights guaranteed under Union law. But at the same time, it follows that ‘unmanned aircraft […] operations should be subject to rules that are proportionate to the risk of the particular operation or type of operation’.Footnote ⁸⁵ The European legislator therefore seems to be sharing the view of the aviation community, by taking the risk-based approach towards drone regulation in the search for a fair balance between conflicting legal values. However, at first sight it does not seem to be completely successful, to the detriment of the right to privacy and data protection, although the EU promotes high standards when it comes to the protection of these fundamental rights.

The analysis of the EU drone regulations concerned shows that there are a lot of exceptions from such important mechanisms as the registration of drones and their users or the direct remote identification of unmanned aircraft, which hardly seems to be well founded and makes it quite difficult to ensure the effectiveness of these measures while protecting the right to privacy and ensuring personal data protection. For example, the Basic Regulation states that operators of unmanned aircraft shall be registered in accordance with the acts adopted by the Commission when they operate unmanned aircraft, the operation of which presents risks to privacy or protection of personal data, and such unmanned aircraft shall be individually marked and identified.Footnote ⁸⁶ Therefore, it seems that the obligations related to registration should apply whenever a drone with any sensor that allows the capture of private or personal data is used or is going to be used. Yet Regulation (EU) 2019/947 adds some ambiguity regarding registration, because according to it such registration is mandatory only when operating a drone equipped with a sensor able to capture exclusively personal data, which covers only information related to an identified or identifiable natural person (data subject),Footnote ⁸⁷ leaving aside the data, which strictly does not fall within the scope of the definition of personal data, despite the fact that collection of such data could infringe the right to privacy. Moreover, the obligation to register is not applied when using drones that are considered to be toys within the meaning of Directive 2009/48/EC, although the latter also can be fitted with cameras, microphones, and various other sensors capable of capturing and storing both private and personal data. Therefore, as the remote pilot of an unmanned aerial vehicle (UAV) and the pilot of a manned aircraft ultimately have the same responsibility for following the legal regulations when operating their aircraft,Footnote ⁸⁸ the obligation to register is highly important when dealing with their anonymity issue, as it can ease traceability in the case of their possible liability for failing to comply with those rules. This was also the standpoint of the European Parliament, noting that all drones in line with a risk-based approach should be equipped with an ID chip and registered to ensure traceability, accountability, and the proper implementation of civil liability rules.Footnote ⁸⁹

The same goes for a direct remote identification system,Footnote ⁹⁰ which, despite the European Parliament’s expressed view that the question of identifying drones, of whatever size, is crucial,Footnote ⁹¹ does not apply to drones categorised as C0 class (i.e., drones with an operating mass less than 250 g) or C4 class (i.e., drones already made available on the market) within the meaning of delegated Regulation (EU) 2019/945,Footnote ⁹² although this system is essential for effectively dealing with the issue of drone users’ anonymity and ensuring their traceability; that is, remote ID is crucial for individuals to be able to take measures to protect their privacy from aerial surveillance by such drones. It is hard to understand the grounds for this exception because it does not seem that such an obligation could be regarded as unsuitable, unnecessary, or disproportionate, even when talking about the drones already made available on the market, as direct remote identification according to the same Regulation (EU) 2019/945 can be provided as a separate add-on, which can be retrofitted on drones by their users themselves.Footnote ⁹³ This is especially the case when in 2017 one of the world’s leading drone manufacturers had released a white paper outlining a concept in which each drone could transmit its location as well as a registration number or similar identification code using inexpensive radio equipment that is already on board many drones today and that could be adopted by all manufacturers.Footnote ⁹⁴

Furthermore, the delegated Regulation (EU) 2019/945 sets out the requirements for a geo-awareness system, which should alert remote pilots when a potential breach of airspace limitations is detected so that they can take effective immediate action to prevent that breach; for example, in areas where drone use is restricted owing to privacy concerns. But this system is not mandatory, not to talk about a geo-fencing system, which is completely omitted from the EU drone regulations, although it could automatically prevent drones from entering or launching in restricted (no-fly) zones and help to ensure privacy in these areas.Footnote ⁹⁵ However, some drone manufacturers tend to install geo-fencing systems in their drones voluntarily, which shows that business awareness extends far beyond that of the legislators.Footnote ⁹⁶ What is more, alarming drone cybersecurity issues are not covered by the EU regulations either.Footnote ⁹⁷

Of course, the EU legislator acknowledges the need to further develop requirements regarding the registration of drones and their pilots, as well as geo-awareness and remote identification systems, as these are seen as the foundations of the U-space system, which is being developed to safely integrate drones into the airspace.Footnote ⁹⁸ However, this step-by-step approach, based on the current state of drone technology development, considering the fast pace of technological progress in comparison to the evolution of legal regulation, risks lagging far behind the technology and does not correspond to the standpoint of the European Parliament expressed in a 2015 resolution on the safe use of remotely piloted aircraft systems (RPAS) in the field of civil aviation that the global regulatory framework for drones should be part of a long-term perspective, taking into account possible future developments.Footnote ⁹⁹

From the global perspective, it is quite clear that a similar approach to drone regulation is being taken by legislators worldwide; for example, in the US,Footnote ¹⁰⁰ Canada,Footnote ¹⁰¹ and Australia,Footnote ¹⁰² where specific requirements for drone registration, pilot licensing, built-in remote identification systems, operations above gatherings of people, minimum distance from airports, other people and property, geo-fencing and/or geo-awareness systems, among others, are being established. Some of these are already being implemented; others are still in progress (in a transitional period).Footnote ¹⁰³ Meanwhile, in other European (non-EU) countries, such as the UK,Footnote ¹⁰⁴ Norway,Footnote ¹⁰⁵ and Iceland,Footnote ¹⁰⁶ drone regulation is based on common EU drone rules or the latter are de facto applied. The aforementioned countries also share a risk-based approach – like the EU, other countries tend to differentiate drone regulations based on the type of operation (i.e., different flight purposes: recreational, commercial), drone size and weight, other drone characteristics (e.g., with or without camera), level of pilot competence, and so on. This regulatory approach in a sense materialises the vision of the European Parliament that a ‘harmonised and proportionate European and global regulatory framework needs to be developed on a risk-assessed basis, which avoids disproportionate regulations for businesses that would deter investment and innovation in the [drone] industry, whilst adequately protecting citizens’.Footnote ¹⁰⁷

Although such an approach at first glance may seem beneficial for industry, it is not the case in the context of drone technologies. When the legislator avoids taking more decisive steps in order to develop a clear and well-defined provision, this creates a sort of ‘chicken and egg’ problem, whereby regulators are reluctant to develop standards until the industry comes forward with technologies for authorisation; however, the industry is reluctant to invest in developing the necessary technologies without certainty surrounding how they will be regulated. Such a deadlock is dangerous from the human rights perspective and suggests a failure on the part of the legislator to balance conflicting values, and nor does it help the industry to thrive. As the ECtHR has ruled on several occasions, it is essential to have clear and detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated, and there must be adequate and effective safeguards against abuses.Footnote ¹⁰⁸ Such rules must form part of a legislative framework affording sufficient legal certainty, so that all parties can foresee the consequences for themselves.Footnote ¹⁰⁹

This brings to mind the control dilemma elaborated by Collingridge, following which, influencing technological developments is easy when their implications are not yet manifest, but once we know these implications, they are difficult to change. In other words, when a technology is still at an early stage of development, it is possible to influence the direction of its development, but we do not yet know how it will affect society. On the other hand, when the technology has become societally embedded, we can recognise the implications, but by then it is very difficult to influence its development. Nevertheless, legislators should not put human rights at risk, but should refrain from a step-by-step approach based on the current state of technological progress, as such an approach tends to lag behind the development of technologies. Shifting from a reactive to proactive legislation and establishing a sufficiently clear and balanced legal framework could help foster further technological development, while at the same time ensuring adequate protection of human rights. As the deployment of drones may inevitably raise tensions between the right to privacy and other human rights, a holistic approach must be taken when regulating the use of drones, focusing not merely on the protection of the right to privacy, but paying more attention to other fundamental freedoms and human rights, and seeking a well-balanced legal framework.Footnote ¹¹⁰

In this regard, Article 52 § 1 of the Charter establishes that any limitation on the exercise of the rights and freedoms recognised by this Charter are subject to the principle of proportionality. This principle is also considered the most important tool for interpreting the ECHR and is widely applied by the ECtHR.Footnote ¹¹¹ Therefore, in continental (Romano-Germanic) legal systems, the proportionality principle prevails as a balancing method. Despite the very concept of balancing being perceived slightly differently in non-continental legal systems,Footnote ¹¹² the substantial objective remains the same – to strike a fair balance between conflicting legal values. Legislators worldwide should rely more on the principle of proportionality (or other legal balancing methods) when regulating the usage of drone technology in order to reconcile conflicting human rights. As technological development in this field is inevitable and drone usage in modern society seems to keep growing rapidly, further discussion of these issues is of great importance.

14.4 Conclusions

This study has revealed that the use of drone technology can interfere with the right to privacy in diverse ways. Although many of the discussed dangers that the use of drones pose to the right to privacy are not new relatively speaking, the frequency and severity of privacy violations may increase significantly owing to the capabilities of drones. In this regard drones pose a dual threat: (a) as a technology that inexpensively ‘gives wings’ to other technologies (e.g., cameras, sound recorders, GPS, infrared and other sensors, etc.), thus allowing their use in a completely new environment (i.e., in the air) and opening up new surveillance possibilities, and (b) as a platform (base) that integrates various technologies into one whole, including the incorporation of AI technology, thus creating qualitatively new surveillance instruments.

However, various restrictions imposed on the use of drones in favour of privacy protection could undermine other human rights that are equally important; for example, the right to engage in work and the freedom to conduct a business, the right to property, freedom of expression, and the right to information, or even the right to life. This requires a holistic approach from legislators in order to strike a fair balance between these conflicting values. It is important, when regulating the usage of drone technology, to rely more on the proportionality principle (or other legal balancing methods) in order to reconcile conflicting human rights.

The legal response to the threats posed by the use of drones tends to lag behind the development of these technologies, and various poorly grounded and extensive exceptions are being established. Illustrated by the example of the EU, the study reveals that further joint action must be taken to develop legal requirements regarding the registration of drones and their users, as well as geo-awareness and remote identification systems, while also establishing common rules related to drone cybersecurity, geo-fencing, and others. More attention should be paid to by-design and by-default measures (e.g., minimisation of the data gathered by drones, automatic anonymisation or removal of unnecessary data, etc.), possible obligations for online service providers (e.g., remote signal blocking, restrictions for data sharing, etc.) and AI related issues in drone systems.

The legislators should foster the development of standards using a long-term perspective. In order to be effective, the legislation has to shift from reactive to proactive, and establish a more future-orientated legal framework taking into account possible future developments, rather than a step-by-step approach based on the current state of technological progress. The industry, regulators, and the public must come together to seek a harmonised global regulatory framework and to guarantee legal certainty while balancing competing values. As drone usage in modern society keeps growing, it is of great importance to tackle these challenges in a timely manner and ensure that all the conditions are met for the safe and sustainable emergence of innovative drone services, enabling the industry to thrive and at the same time adequately deal with human rights concerns.