13 February, 2017
The Swedish Supreme Administrative Court has recently ruled that drones equipped with cameras are subject to the Swedish Camera Surveillance Act. This means that photographing with drones in public areas requires a permit from the county administrative board. The Swedish Supreme Administrative Court’s decision has given rise to lively debate. Set out below is an attempt to clarify some of the current issues related to flying drones.
Drones and photographing with drones
A drone is defined as an unmanned aircraft which can fly itself or be remotely piloted by a pilot located in another place. Drones may often be used for filming and still photography from the air through the drone being mounted with a camera. Usually, the drone pilot can see what the camera sees and steer the drone from the ground via video link.
Permits to use drones
Several types of permits may be required to use drones. Permits from the Swedish Transport Agency are required, among other things, for flying for commercial purposes and for all flying which takes place without visual contact (at more than 120 metres altitude or more than 500 metres from the pilot).
In addition, when you fly a drone, you must comply with the rules which apply to all aircraft. Flying a drone within an airport control zone requires a permit from the Swedish Civil Aviation Administration (LFV). Consequently, flights on one’s own property are considered to be an illegal violation of airspace if you lack a permit. It is thus important to consider the fact that a large portion of Stockholm is part of the Bromma Airport control zone.
As referred to above, it is now clear that aerial photography with drones is subject to the provisions of the Swedish Camera Surveillance Act which means that a permit is required from the county administrative board to fly a camera-equipped drone over areas to which the public has access. The Act applies as soon as a camera is mounted on the drone, it makes no difference whether the camera is turned off.
For what purposes can an individual obtain a permit for camera surveillance using drones?
Permits for camera surveillance are to be issued where the interest of the surveillance outweighs the individual’s interest not to be subject to surveillance. There is a good chance of obtaining permits for photographing with drones for the purposes of prevention, detection or investigation of crime and the prevention of accidents.
In other cases, it may also be possible for the county administrative board to grant permits for camera surveillance with drones, e.g. for taking of inventory and monitoring forests, land and agriculture, documenting landscapes for, among other things, construction projects and the like, where the flights have a purpose beneficial to society. To obtain a permit, the violation of privacy must be negligible and the county administrative board may also impose conditions related to the location or the camera Equipment.
However, there will be very limited possibilities to obtain permits for camera surveillance in relation to drone photographing for purely commercial activities which have no socially useful purpose.
How are real estate brokers and other parties who take aerial photographs of houses and residential areas from above with the assistance of drones affected by the judgment of the Swedish Supreme Administrative Court?
It will be difficult in the future to photograph and film areas to which the public has access, such as streets and views over the areas. In such case, a permit from the county administrative board is required, and there is little possibility of obtaining such a permit since the photographing is purely Commercial.
Drone photography of houses with appurtenant yards is, however, still permitted. No permit is required from the county administrative board since no public area is involved. However, it is important not to photograph so that individuals inside the house can be viewed on the pictures without them being aware of it, since this may constitute intrusive photography which is criminally punishable.
The ban on intrusive photography does not apply to yards but there is nevertheless cause to obtain consent from individuals who are there, since pictures of individuals who can be identified constitutes personal data. This means that one must comply with the provisions of the Swedish Personal Data Act.
What applies to drone photography for private purposes?
No permit is required from the county administrative board to fly drones in areas in which there is no public access, provided it is done for a private purpose.
Possible legislative amendments in the future
The Swedish Supreme Administrative Court’s ruling has been criticized for rendering the drone industry’s activities impossible. Many companies and parties interested in drones have demanded a legislative amendment which may also be possible. Specifically, in December 2016, the government proposed that a special exception for drones should be introduced into the Swedish Camera Surveillance Act. Under the proposed amendment, the Swedish Camera Surveillance Act will not be applicable with respect to camera surveillance which is conducted with a camera-equipped drone. Instead, the Personal Data Act will apply, which will ensure that violations of privacy are prevented. If approved by the Swedish Parliament, the bill may enter into force on 1 August 2017.
Tomas Rudenstam, Partner at Foyen.
Elinor Pejryd, associate at Foyen.