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A CURSORY LOOK AT DRONE REGULATION VIS-A-VIS RIGHT TO PRIVACY AND SAFETY IN NIGERIA: By Ibrahim D Bulama
Drone is one of the current technological devices with the greatest prospects for use. Certainly, although its use is very widespread in the military field, its use in the civil field also poses threats, particularly from the perspective of fundamental rights that may be affected by the use of this technology (privacy, image, data protection) which impact may vary —and it likely will— as the technology can incorporate progresses.
Non-military uses of drones include journalism, filming and aerial photography; research; shipping/delivery; disaster management, healthcare, geographic mapping; structural safety inspections; wildlife monitoring; precision agriculture etc.
The rising demand and use of this technology also necessitates its regularization within Nigerian upper atmosphere. It is the firm aim of this article to explore and develop an overview on the actual Nigeria's legal framework for the civil use of drones outlining right to privacy protection.
LITERALLY, WHAT ARE DRONES ?
When we speak of “drones”, we mean Unmanned Aerial Vehicle (UAV), Unmanned Aircraft (UA) or literally, refer to Remotely Piloted Aircraft (RPA). In otherwords, is defined to be an aircraft with Remotely Piloted Aircraft System (RPAS) or Unmanned Aerial System (UAS) which include a UAV, a ground-based controller, and a system of communications between the two. Drone is characterized by its ability to be piloted remotely.
REGULATION, PERMIT AND GUIDELINES FOR FLYING DRONES INTO NIGERIA'S UPPER ATMOSPHERE
There is yet to be a standard legislation on drone technology (the need of which of course is not necessary) in Nigeria. Since drone technology operates within Nigerian airspace, the appropriate body imbued with a regulatory power is the Nigerian Civil Aviation Authority (NCAA).
The issuance in Nigerian Civil Aviation Regulations (Nig. CARs 2015 Part 126.96.36.199) and implementing Standards (Nig. CARs 2015 Part IS.188.8.131.52) first restricted government agency, organisation or an individual from launching RPA/UAV in the Nigerian airspace for any purpose whatsoever without obtaining requisite approvals/permit from the Nigerian Civil Aviation Authority (NCAA) and Office of National Security Adviser (NSA). Any non-compliance with conditions stipulated in their permits and the requirements of the Nig. CARs attracts sanction in accordance with the dictates of the Nigerian Civil Aviation Regulations (Nig. CARs). Let's have a cursory look at such conditions:
• Seeking for permission and submission of flight plans to the NCAA for authorization prior to conducting individual drone flight
• Drones weighing more than 250 grams (.55 pounds) must be registered with the NCAA
• Drone operators must obtain a Remotely Piloted Aircraft Systems Certificate prior to flying in Nigeria.
• Drones shall not be operated in a reckless or other manner that may cause harm to person, property, or other aircrafts
• It is prohibited to fly across the border from or into another state or operate over the high seas without proper authorization from Air Traffic Control.
It is also expected that an applicant’s business is incorporated with Corporate Affairs Commission (CAC) with a minimum capital shares of Twenty Million Naira in shares. An applicant is required to fill out the Personal History Statement (PHS) with the effort of Nigerian Security Agency (NSA), in compliance with NCAA NigCAR Part 17 and Aviation Security Regulations. As part of the requirements, a non refundable processing fee of Five Hundred Thousand Naira bank draft payable to the Nigerian Civil Aviation Authority.
Note, these requirements must be attained six months prior to date of operation of commercial drones. Once the security clearance is complete, PAAS with three years validity and subject to annual utilisation fee is issued by Air Transport Licensing Committee (ATLC). PAAS is renewable upon expiration after three years and can be cancelled by the authority upon violation of any delineated condition.
PRIVACY PROTECTION AND SAFETY
Privacy, the right to be let alone centers on the prerogative of individual freedom. The right of privacy implies the exclusion of the public eye from prying into an individual’s affair. Another crucial aspect of the right to privacy entails the right to protect one’s image and personality and to have unfettered access to control one’s zones of exclusivity, space and confidential information. The right to privacy lies within the realm of self-ownership. It is the moral liberty of doing what an individual deems fit to be down with his/her individualism and keeping others outside the sphere of his/her self-ownership.
Right to privacy is a fundamental right, Courts have always interpreted the provisions of the fundamental human rights widely as against restrictively, except where the constitution itself limits that right. Section 37 of the Nigeria Constitution 1999 (as amended) states:
“the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”
However, it is interesting to note that the private bodies have now taken up the infringement of the person’s privacy which was traditionally imputed to the government. When it comes to drone technology regulation and privacy protection, I may manage to start with the words of Jeremy M. Miller:
“It would be a good thing if privacy could be protected, but the war and way of technology and the needs of security have de facto made the right to privacy a dead letter.”
Drone technology is one of the major impediments on the right to privacy in the world, even in developed countries where drones have been in use for long. Think of the inconvenience of having drones fly above your house, the buzzing noise, the fear of the package it carries falling into your compound and damaging things or even killing a child, the inconvenience of being spied by a drone or your data being collected, etc.
Disposing this on the principle of cujus est solu, ejus est usque ad coelum et usque ad inferos under Tort or Land law, simply put a person is said to enjoy his ownership of land above the land to the heavens and everything below it to the centre of the earth. Any person who enters the said land/house without justification, either by flying or excavation — remains or directly places or projects any material object upon such land is liable for trespass and possibly nuisance. Civil Aviation Act is one of the exceptions to this general rule. CAA provides that:
“no action shall lie in respect of trespass or nuisance by reason only of or of the ordinary incidents of flights of an aircraft over any property at a height above the ground which is reasonable, having regard to wind, weather and all the circumstances of the case; but if damage is caused to any person or property by an aircraft in flight, taking off or landing, or as a result of person or thing falling from such aircraft, then the owner of the aircraft will be liable for the damage without proof of negligence or intention”
Technically, it may be difficult to describe drone as an aircraft considering its gadgetry (such as high quality camera pixel and remote navigation system), size etc. However, it seems to literally fall within the context. Damage caused while in flight, taking off or landing, or thing falling from aircraft, the rule automatically makes the owner of the aircraft liable. Thus, the strict liability contained in the Civil Aviation Act would make drone users strictly liable in case of any damage. Whereas on trespass, reasonability of the distance is always the fundamental point.
There is need to extend or regulate the distant level expected of a drone to fly and equally use of its camera in a community so as to forestall possibility of privacy breach. The rules regarding unmanned aircraft should contribute to achieving compliance with relevant rights guaranteed under constitution.
Drone technology a great prospect for use and is particularly in the civil field where its applications, with a broad range of use, presents some challenges. Therefore, It is very crucial to consider the need to ensure safety and respect for privacy right of citizens that may be affected by the use of this technology.
Ibrahim D Bulama is a law student
of Bayero University, Kano.
He can be reached through: