While until a few years ago the use of drones was the prerogative of video editors and the military sector, nowadays, thanks to technological evolution and lower costs, these small, compact-sized aircrafts increasingly represent recreational devices through which evocative landscape shots can be taken.
Precisely because of their ability to show the world as it has never been seen before, from an original and unusual perspective, the unmistakable buzzing sound perceptible dozens of meters away is also beginning to be heard in cities, beaches, or simply at organized events.
Any drone includes at least a GPS and a camera although the configuration can become more elaborate if required; in fact, more advanced drones also include cameras with night vision, 3D scanners, thermal imaging cameras, WiFi and Bluetooth devices, and so on.
So, one can wonder to what extent is the use of such devices lawful? The answer is not obvious especially when one considers that a drone is equipped not only with a camera, but also with internal memory capable of collecting and storing data and information about individuals in the area flown over.
The nature of such machines and the advanced technologies with which they are equipped make them inherently suitable tools for capturing “sensitive” data. It is clear that careless use of the drone, even if only for recreational purposes, could come into conflict with the right to confidentiality of the persons filmed and its privacy.
To answer this question, we must first look at European Regulation 2016/679, also known by its acronym GDPR.
Not all droners are experts in privacy so it could happen that those who decide to use one, even in a moment of recreational entertainment and fun among friends, are unaware that they have to apply certain rules and good practices to avoid a violation of privacy regulations, but not only that. In fact, it is good to keep in mind that careless use of the same could have civil as well as criminal implications.
Therefore, two different issues come into play in this regard: that of the privacy of the people filmed (in terms of data acquisition) and that of the protection of personal data (in terms of subsequent use).
First of all, as is well known, it is necessary to know that the right to privacy of third parties cannot be violated by filming from above private residences or places closed to the public. Such an infringement, in fact, will entitle the injured party to compel the video maker to destroy the collected images, preventing him from taking further videos, without prejudice to the right to take legal action to obtain compensation for any damages suffered (Art. 10 of the Civil Code).
The issue becomes more delicate when we not only make videos, but also decide to disclose the footage and images now in our possession by posting them, for example, on our social networks or on the Internet. In such cases, it is essential to take all the measures imposed by the GDPR in order to minimize the risk of incurring the heavy penalties that the Italian Data Protection Authority might impose.
First of all, the Italian Data Protection Authority emphasizes that when flying a drone equipped with a camera in a public place such as parks, streets or beaches, one should avoid invading people’s personal spaces and intimacy or, in any case, avoid capturing images containing personal data such as license plates of cars or residential addresses.
Not only that. In fact, If the decision to disclose the footage is made, as a first step, it is essential to collect consent to the publication of the images from the subjects involved, which is the legal basis for making their distribution lawful (Art. 6 GDPR). Such consent is not required only if, due to the distance of the filming, the faces of the subjects are not recognizable or, in any case, the same are obscured.
The GDPR also considers lawful the filming necessary for the execution of the contract concluded with the person that purchases a product delivered to his or her home by the seller by means of a drone.
The pilots, moreover, should always observe the principles on data processing set forth in Article 5 of the GDPR, which requires compliance with the adequacy, relevance and non-excessiveness of data with regard to the purposes for which they were captured. The Droner, therefore, in compliance with the aforementioned principles should favor proportionate technology and prefer anonymization techniques that, through blurring or other graphical effects, allow images to be automatically obscured in order to avoid identification of individuals where it is not necessary.
For more shrewd pilots, it is emphasized that it is extremely risky to justify the collection of sensitive data by invoking the non-applicability of the GDPR to the processing of personal data “carried out by a natural person for the exercise of activities of an exclusively personal or domestic nature” (Art. 3 GDPR). Indeed, the judges of the Court of Justice of the European Union interpret this rule narrowly and, therefore, as a general rule this article does not constitute an exemption from the GDPR (Judgment of the Fourth Chamber, December 11, 2014, František Ryneš v. Úřad pro ochranu osobních údajů).
Finally, it must not be forgotten the criminal aspect into which the pilot who decides to make more brazen use of the drone by procuring footage, visual or sound, containing data pertaining to the daily routines of people taking place in private residences may fall. The risk is to be punished with imprisonment from six months to four years (Articles 614 and 615 bis of the Criminal Code).
Even in this case, the law is more severe when the filming is unlawful, referring to those taken without the consent of the person filmed. Thus, once again emerges the importance of the acquisition of consent, which could be for the Droner the only exemption to avoid a certain conviction, together with objective reasons of a higher order that justify such filming (e.g., public order requirements).
In conclusion, it can be highlighted that privacy protection must be carefully evaluated because of the enormous technological potential of drones and the underlying economic interests. It is easy to speculate that the increasing use of drones in activities with high social impact will make the issue of protecting people’s privacy increasingly prominent. Common sense and precaution, after all, remain the best principles in the responsible use of new technologies. It would be sufficient to refer to them to resolve many doubts and disputes.