Numerous articles published both on the Internet and in the trade and scientific press deal with the legal aspects of drone flight, with their authors focusing on issues such as operating in a particular type of flexible airspace structure, at a certain distance from buildings, people or airports, etc. These are undoubtedly the most important issues related to air traffic safety and efficiency. Nevertheless, in the author’s opinion, there is a need to describe also a few exemplary – but fully possible or even common – situations when a seemingly legal flight (properly notified, separated, compliant with the rules) nevertheless violates the law. The catalogue of such cases is, of course, open and is constantly supplemented by examples of human ingenuity.
Malice of the drone maker – Article 107 of the Code of Offences
October 2017 brought, among other things, the Nobel Prize in Physiology or Medicine, for the discovery, made by American scientists, of the existence of molecular mechanisms controlling diurnal rhythms in living organisms[1]. At the time, an inhabitant of central Poland unknowingly began to boil such molecules in his neighbours, frequently and at various times of the day flying a noisy drone over their plot. He completed his empirical research into disrupting the diurnal rhythms of local residents less than a year later, i.e. in September 2018. However, the experiment did not meet with the recognition of the Nobel Committee, but with the attention of the local police station. Instead of a reward, the man received a fine of PLN 300 for an offence under Article 107 of the Misdemeanours Code[2], which states that:
“Whoever, for the purpose of annoying another person, maliciously misleads or otherwise maliciously disturbs him or her, shall be punished by a restriction of liberty, a fine of up to PLN 1,500 or a reprimand.”
The punishment was imposed in July 2020 by the District Court in Grójec, and then – as a result of an appeal – the whole case escalated to the Regional Court in Radom, which, in its verdict of 16 October 2020, with case number V Ka 626/20, upheld the first-instance ruling.
However, the Ombudsman disagreed with the ruling, stating the legitimacy of the appeal lodged by the defendant with the Court in Radom. The latter maintained, inter alia, that it was impossible – against the background of the evidence gathered – to conclude that the drone flights were made with the intention of annoying another person. The lack of such an intention precludes finding the defendant guilty of the alleged act. The Ombudsman’s cassation was therefore submitted to the Supreme Court.
The case was finally heard by this Court in December 2022 and ended with the acquittal of the punished person. The panel adjudicating the case, i.e. case number IIKK 202/22[3], shared the Ombudsman’s arguments and even found that the man lacked the intention and purpose to annoy another person. The drone community may even feel slightly complimented by the content of the justification for the verdict, as it points out that frequent drone flying – in itself – is not of a pejorative nature. Thank you for your kind words.
With the above in mind, it is rather difficult to have such a factual situation that the average drone pilot would incur liability under Article 107 of the Misdemeanours Code, nevertheless, such a case can be imagined, also if the flight is performed in a legal manner from the perspective of the regulations on drone operations.
Peace and order – Article 51 of the Code of Offences
While the above judgment inspired this article, it is important to note that the Code of Offences does not end with Article 107. Nor does it take a particular default to recognise that it probably does not begin with this provision either. This is indeed the case, and out of its hundreds of predecessors, we will now turn our attention to – of relevance to this article – a section of this one, marked No. 51:
“§ 1. Whoever, by shouting, noise, alarm or any other prank disturbs the peace, public order, rest at night or causes disorder in a public place, shall be subject to the penalty of arrest, restriction of liberty or a fine. […]”
The manner of piloting a drone may be socially harmful and deserving of punishment even on this basis, which is not difficult to imagine. It is worth noting that – unlike Article 107 – the provision in Article 51 of the Misdemeanours Code does not require a specific intention on the part of the perpetrator of the offence. The mere fact of committing the prank is sufficient.
It is true that the provision also mentions, among other things, the question of offence in a public place, but, as stated above, the Supreme Court is of the opinion that the mere flying of a drone is unlikely to cause such an offence. Also of no particular relevance is the question of incitement to commit an offence, the hooligan nature of the act, or the question of being under the influence of alcohol or other similar substances, which is referred to in the non-referenced part (§ 2 and 3) of the provision.
In the opinion of the Supreme Court, expressed, inter alia, in the judgment of 22 May 2019, ref. IV KK 219/18[4], Article 51 of the Misdemeanours Code is intended to protect “[…] the right of citizens to undisturbed public peace and order and undisturbed night’s rest, which should not be disturbed by any behaviour going beyond the generally or customary norms of social behaviour. The legislature’s use of the term ‘disturbance’ indicates that it is a question of causing a disturbance somewhere, a commotion that violates the established order, the norms of social coexistence or the natural course of affairs, resulting in outrage, irritation or disgust.”
The specific legal goods protected by this provision are public peace, i.e. – as already deduced in the 1930s by the editor of the first Polish criminal code, J. Makarewicz – the state of control over the feelings and emotions of the members of a given community, sleep, especially undisturbed sleep, which is a natural element of man’s biological rhythm, and morality[5].
It is necessary to quote a kind of development of the above view, indicated in the judgment of the same court of 2 December 1992, ref. III KRN 189/92[6], that “[…] an act which not only does not grossly interfere with the norms of behaviour in force in a specific situational context, but even arouses, in the public perception – assessments of acceptance, even tacit approval, approbation, admiration or recognition – cannot be considered as a ‘prank’.”
The legislator therefore creates a closed catalogue of what can be disturbed – i.e. negatively violated – by the perpetrator of the offence in question and these are:
a) peace and quiet,
b) public order,
c) rest at night.
Therefore, in order to speak of the commission of this offence, there must be a prank that consists of behaviour that significantly deviates from the customary norms of the place, circumstances, time and community in question. It should be an act that arouses negative emotions and judgments in the average witness and offends the peace, public order or night-time rest. As an aside, it should be noted that although any violation of the night’s rest is a breach of the peace, the legislator – presumably – has the intention here to emphasise the importance of the night’s rest for society. It is generally accepted that the so-called “night-time rest” is from 10 p.m. to 6 a.m., nevertheless, this does not derive from common law and there is nothing to prevent other hours from being adopted as a time particularly protected from disturbance in a given community[7].
It is therefore possible to imagine numerous behaviours related to piloting a drone, the undertaking of which, under the given circumstances, place, time and community, will exhaust the elements of the offence stipulated in Article 51 of the Misdemeanours Code, even if such flight is – in principle – in compliance with the aviation law, i.e. analogously to Article 107 of the Misdemeanours Code.
Please do not record me – Articles 23 and 24 of the Civil Code and 81 of copyright law
According to 58% of the public, drone operations can pose a threat to privacy[8]. In turn, advances in technology mean that this concern will increasingly become a reality. This article is oriented around the apparent legitimacy of drone operations, hence further omitting the numerous possibilities of devices capable of surveillance, spying and eavesdropping on selected individuals. It should be noted, however, that even toy equipment is already suitable for capturing, transmitting and storing high-level vision. This brings with it the risks of accidental breaches of privacy for – often unaware – individuals.
Article 7 of the EU Charter of Fundamental Rights[9] states that: “Everyone has the right to respect for his or her private and family life, home and communications”.
The mere observation of a person by means of a drone may violate his or her private life, i.e. the sphere covered by the prohibition of interference undertaken by external actors, and create a sense of threat and danger to the freedom of the personal sphere[10].
Also under the Polish Constitution[11], specifically Article 47, privacy is protected in a special way.
However, as already mentioned, modern drones are able to capture images with the quality allowing for the recognition of images of persons located at a considerable distance from the device. In turn, in order for the image to be deemed to contain an image, it must allow for the recognition of the immortalised person on the basis of a set of recognisable, distinctive physical features (also on the basis of, for example, characteristic gait, body proportions, etc.)[12].
The recording of the image does not justify resorting to the catalogue of legal sanctions, unless it is accompanied, for example, by the violation of physical inviolability or infringement of home turf. However, it will be (mostly) illegal to process or share the recorded or photographed image in the media or on the Internet, unless the person concerned has given their consent[13].
In such a case, the person affected by the infringement is subject to twofold protection, i.e. that derived in particular from Articles 23 and 24 of the Civil Code[14] and that provided for in the wording of Article 81 of the Copyright and Related Rights Act[15].
The above-mentioned civil regulations jointly provide, inter alia, that a person’s image is protected irrespective of the content of other regulations, and the one, whose image is endangered by someone else’s unlawful action, has the right to demand:
a) desisting from the infringement,
b) removal of the effects of the
infringement,
c) payment of compensation for one’s own benefit or for the benefit of an indicated organisation,
d) payment of damages, if damage was connected with the infringement.
On the other hand, the provision of copyright law indicates that making the image available requires consent, unless one of the following premises relieving from this obligation occurs, i.e.:
a) the person has previously agreed to receive remuneration for posing,
b) the person is widely known and his/her image has been recorded in connection with the performance of public functions, in particular political, social and professional functions,
c) the image of the person constitutes only a detail of a whole such as a gathering, landscape, public event.
In summary, a flight carried out theoretically in accordance with the relevant regulations may involve an infringement of a person’s right to privacy and result in a number of unpleasant remedial obligations, including liability for damages.
Artur Banach, attorney at law
References:
[1] The Nobel Committee for Physiology or Medicine (2017, 10 October) Press release Medium in English: https://www.nobelprize.org/prizes/medicine/2017/press-release/ [accessed 27.09.2023];
[2] Act of 20 May 1971 Code of Offences (i.e. Journal of Laws 2022, item 2151, as amended);
[3] Judgment of the Supreme Court of 7.12.2022, II KK 202/22, LEX no. 3557064;
[4] Judgment of the Supreme Court of 22.05.2019, IV KK 219/18, LEX no. 2671214.
[5] S. Krajnik [in:] Kodeks wykroczeń. Commentary, ed. J. Lachowski, Warsaw 2021, art. 51;
[6] Judgment of the Supreme Court of 2.12.1992, III KRN 189/92, LEX no. 162227.
[7] S. Krajnik [in:] Code of Offences. Commentary … art. 51;
[8] J. Bernacka Privacy in the era of unmanned aerial vehicles in the light of the values of the Charter of Fundamental Rights of the European Union, Public Administration Yearbook 2022 (8), Krakow 2022, p. 302;
[9] Charter of Fundamental Rights of the European Union (OJ EU. C. 2007 No. 303, p. 1 as amended);
[10] J. Bernacka Privacy in the era… p. 294;
[11] Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws No. 78, item 483 as amended);
[12] Judgment of the SA in Warsaw of 22.02.2017, VI ACa 1781/15, LEX no. 2402439;
[13] J. Bernacka Privacy in the era… p. 295;
[14] Act of 23 April 1964 Civil Code (i.e. Journal of Laws 2023, item 1610, as amended);
[15] Act of 4 February 1994 on copyright and related rights (i.e. Journal of Laws 2022, item 2509).
