Drones, law and audiovisual

Jaime Rodríguez Díez, letrado de Diez & Romeo Abogados, analiza en esta tribuna el impacto que la legislación o, en muchos casos la falta de ella, puede tener sobre el uso de drones, especialmente en entornos de producción audiovisual.

In a time of negative economic situation, the media are looking for competitive services at affordable prices and the use of drones in graphic reports is increasingly frequent. But what are drones? And what legal implication does its use have?

1.- Drones and prohibitions. Are they aircraft?

The definition that best fits reality is to describe drones as flying devices or devices piloted by remote control. This concept collides with the one coined by the State Aviation Safety Agency (AESA): remotely piloted aircraft.

The aim of the definition given by AESA is to apply the legal regime for aircraft to drones. In this way, the express prohibition of the professional and commercial civil use of drones is justified, articulated through the publication on the AESA institutional website on April 7, 2014. An act that can be appealed before the Courts until June 7.

To refer to the concept of aircraft we have to go back to article 11 of Law 48/1960, of July 21, on Air Navigation, which is defined as “any construction suitable for the transportation of people or things, capable of moving in the atmosphere, thanks to the reactions of the air, whether or not it is lighter than the air and whether or not it has motor-propelling organs.”

As you can see, drones for professional and commercial use are not suitable for transporting people and goods. Both in terms of suitability and purpose, there are differences suitable for not fitting into the term aircraft. Furthermore, an almost 54-year-old law can hardly be the most appropriate framework to support a restriction, since the regulation of drones could never be foreseen due to the lack of existing technology.

In this way, the only Drones that can be allowed today are those intended for military use, and for recreational use (recreational airplane models) as long as it is practiced in areas intended for airplane modeling.

2.- Drone Classes

Depending on their use, the following classification of drones can be made:

A.- Those intended for military use by the Armed Forces, which are developing multiple research programs on drones. In fact, in September 2013 our Defense deployed its first drone to combat piracy in Somali waters.

B.- Those used for video surveillance by the State Security Forces and Bodies, such as the surveillance of public roads and borders. The most recent example is drone surveillance in the Champions League final by the Portuguese police. But when recording people, the struggle between privacy and security arises once again.

C.- Those used to fulfill the public services of the administrations, either directly or through concessionaire companies. Among others, they stand out:
• Fire prevention and detection
• Public Television Recordings
• Control of traffic and public events

In addition, the Madrid City Council has 4 drones to assist the Municipal Police, Firefighters and SAMUR.

D.- And finally, those for commercial and professional use carried out by private companies and individuals, such as:
• Graphic, journalistic reports, from Private TV, Production Companies,…
• Exterior shots (Film production companies, etc…)
• Photogrammetry
• Smart agriculture
• Recognition of places affected by natural disasters

3.- Non-existent regulation

To date, Spanish legislation has not given the appropriate response to the technological innovations of drones. Although it seems that a transitional regime is being prepared for next summer that will be in force until the final promulgation of the Royal Decree that develops the legal regime for drones.

Meanwhile, a total ban on the use of drones for aerial work for commercial or professional purposes. Purpose? Avoid in Spain what happened in the US with the Raphael Pirker case, an operator who managed to annul a sanction for using a drone recklessly while filming at the University of Virginia. The reason? That the use of Drones had not been expressly prohibited.

The consequences of the ban have been devastating:
• Paralysis of the industry
• Millionaire losses in Euros
• Suspended business projects
• Jobs lost

And it does not seem that the new regime is going to make professional activity with drones reasonably flexible, since the claims are:

• Requirement of an airplane or helicopter pilot's permit to operate drones.
• Need to authorize each of the operations carried out with drones, so that if a Television has to record an urgent event, it must wait for the AESA to resolve the request. The same with fire detection, since the drone will not leave until authorization is notified. Experts believe that Prior Communication would be enough to have control over drone operations without collapsing their services.

• Must be registered in the Aircraft Registration Registry and be in possession of the Certificate of Airworthiness. Except for drones with a maximum takeoff mass of less than 25 kg.

Jaime Rodríguez Díez, letrado de Diez & Romeo Abogados