Given their dramatic increase in available use applications and consequent rise in numbers (although not yet swarming through the Hong Kong skies) an increasing number of voices has been heard in recent times advocating serious attention to the regulation both of Drones and (perhaps of equal importance) of their users.
However, the Federal Aviation Administration ("FAA") of the United States is far ahead of world regulation in the complex difficulty of imposing of controls on unmanned aircraft systems ("UAS") requiring Drone operators to have a remote-pilot certificate earned by passing a specific test to fly a Drone for commercial purposes during daylight hours but remaining within the visual line of sight of the Drone operator and only permitted to drone into uncontrolled air space and without flying over people who are not involved in operating the Drone.
Further developments under the FAA rules are anticipated and the basic consequence of the introduction of such regulation is that in order to be commercially viable Drone manufacturers must tailor their products to comply with such regulations not only in the United States but, increasingly, in the rest of the world.
It is well known that the largest Drone manufacturer in the world is the Da-Jiang Innovations ("DJI") of Shenzhen, China immediately over the border from Hong Kong which continues to increase its dominant worldwide control over the manufacturing industry of Drones.
The Hong Kong Privacy Commissioner for Personal Data ("the Commissioner") has taken a proactive role in stirring up relevant government authorities with particular reference to the potential for increasingly frequent invasion by drones of personal data privacy. The Commissioner has issued a Guidance Note extending his existing CCTV guidance to UAVs providing that any privacy intrusion by them can only be justified if it is proportional to the benefit to be derived from the use so as not to be considered as an unfair collection of data contrary to the Personal Data Privacy Ordinance ("PDPO"). It further requires a policy on retention and deletion of the collected personal data when no longer required. The Guidance Note includes the drone hovering and the taking of photographs of faces sufficient to identify the subjects in ways which are the province of the Commissioner under the PDPO and – just possibly – enabling possible directional microphone pick-up of conversations which although not a province of the Commissioner under the PDPO would, nonetheless be an invasion of privacy.
There is no universally accepted definition of Drones but the term covers aircraft that are either controlled autonomously or by computers or by remote pilots.
UAVs are equipped with high resolution cameras and are able to stay aloft for hours which without adequate control moves them from the field of toys and novelties into important and potentially very dangerous tools.
The principal Hong Kong regulatory applications over UAS and their use are by the Civil Aviation Department ("CAD").
However, these guidelines are advising in respect of the recreational use of UAS weighing not more than 7 kilograms. These are considered by the current law to be model aircraft and are not subject to CAD regulation.
The CAD has issued guidelines restricting non commercial UAS flights to daylight hours only, prohibiting flights near airports or over congested areas as well as flights more than 300 feet above ground level.
However, although this is a definite step in the right direction these are not the law and represent guidelines only for recreational Drone flights.
CAD has issued guidelines directed at UAS which are flown in a variety of commercial capacities such as aerial photography, surveying, mapping and agricultural inspection.
For commercial Drone operation prior approval of CAD is required for any UAS weighing more than 7 kilograms. This involves a detailed application process and of course for the unavoidable bureaucratic processing of an application effectively prevents time sensitive or urgent moments of need for the UAS use.
In July 2017 a Hong Kong resident flew his drone inside the departure hall of the Hong Kong International Airport. Apparently his use of the drone was to take images near a boarding gate before he flew to Tokyo. He was arrested upon return to Hong Kong on the basis that the indoor area of his UAV operation with substantial crowds was an unsafe place to use it and there is fortunately an Airport Authority by-law which prohibits objects that may pose flight safety hazards. This incident immediately renewed calls for drone regulation adequate to prevent the menace of UAVs and this led to the introduction by the air traffic management division of CAD of a temporary restricted flying zone covering the west and east areas of Hong Kong harbour, the northern portion of Hong Kong Island and the coastal area of Kowloon Peninsula restricting all flying activities of aircraft, including helicopters and (inter alia) UAS.
Ever on the outlook for a profitable business activity these restrictions only emphasized the need for educative action in respect of UAS operation. It was, perhaps, the extremely bold heist operational linking of the Hong Kong Special Administrative Region with the city of Shenzhen across the border through the flying at night of a drone carrying a suspension line from a Hong Kong flat on the border to a Shenzhen flat across the border river which was then nightly over an undetected period of months of shipments of mobile phones propelled into China without either permit or import duty which stimulated publication by CAD on 3rd April 2018 of a three month public consultation together feedback on recommendations of a consultancy study recently delivered to CAD.
The consultancy study by Netherlands Aerospace Centre of the Netherlands recommended the following innovative and constructive recommendations :-
(i) to set up a UAS registration system for UAS above 250 grams;
(ii) to establish a risk-based classification model for UAS operations, taking into account the weight and type of operations of UAS such as where and how they are operated and developed the operating standards and requirements for each risk category
(iii) to establish training and assessment requirements based on the risk category concerned which should improve operators' safety awareness and knowledge. Duration and complexity of such training or assessment would be based on risks of the UAS operations.
(iv) establishment of a UAS (drone) map primarily to cover no-fly zones and, conversely, areas suitable for UAS flights;
(v) to develop insurance requirements for UAS based on the risk category; and
(vi) study further the indoor operations of UAS.
It was further recommended that a three-category models for classification be adopted for the different types of UAS operations applying the same requirements to both recreational and commercial operation of UAS.
The concluding advice was to implement a strategy for the new rules adopted by phases in order to cater for appropriate regulatory controls both in the near, and in the medium and in the long term so that key items such as a registration database system and guidance materials can be easily and reliably identified and kept in place.
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