Drones and Privacy in Turkey
We had remote controlled cars when we were kids. By the time, we started seeing toys such as remote controlled aircraft, boats and helicopters buzzing around. Nowadays, commercial and leisure “unmanned aerial systems” also publicly known as “drones” have become the fashion and started to be used widely.
People are likely to embrace drones when they are solely used for hobbyist purposes. However, drones, started to cause problems as they become more commonly used. Those problems become relevantly dangerous from time to time, such as flying around the airports, where thousands of passenger flights land on and take-off. In addition to flight safety, there is also another controversial dimension of drone usage, being a threat to “the privacy of private life.” Most of modern drones are equipped with mini-cameras and microphones and they can easily put the privacy of private life at risk by flying over private properties. People started to feel “naked” in the face of this increasing threat.
I. Advantages and Disadvantages
As with many great inventions that change the world, drones had only been used for military purposes for a long time. However, as the technology rapidly develops different usage purposes are coming out and there are both advantages and disadvantages of such expansion of drone activity.
As a result of their evolving systems day by day, now drones have the capability to be used in many different areas for both commercial purposes and public interest. From weather forecasting to maritime monitoring, drones are used in variety of areas and states support and encourage both commercial and public drone sectors as they realize possible benefits.
When we look at the advantages, time and cost efficiency comes at the forefront. So far, compared to other manned operations, drones proved to be relatively efficient in terms of time and cost in many different areas. Imagine you are a farmer and paying workers to spray crops on a large field or using trucks that burn fossil fuels to harvest. By virtue of the drone technology, this kind of work can be handled swiftly and with a minimum amount of man power and probably in a better way. Drones also hold many prospects in unmanned cargo handling, scientific research in hard to reach areas, surveillance, and in many other areas. Last but not least, contribution of drones to the health sector is also substantial. Drones have the distinct ability to go where humans cannot, and that goes for natural disaster areas so this helps to provide aid to people expediently.
Besides its advantages, drone technology, on the other hand, could pose considerable threats to the society. When we consider the drawbacks, we can count numerous threats from terrorism to causing bodily injuries and damages. However, among all these, inarguably, privacy concern is the most controversial one. Most drones, even the hobbyist ones have cameras and microphones on them and they record all that it comes across. Take the drones delivering cargo as an example; they easily record the location of houses and the faces of the recipients. In other words, it is so easy for drones to violate the privacy of private life irrespective of whether it is intentional or not.
II. Privacy Concerns
The development and spread of technology, in general, create the risk of data security both in business relations of individuals and in their social lives. Lately, drones have joined among these privacy-threatening technology army as a result of the increasing use of civilian drones equipped with all. Taking all these problems and threats caused by drones into account, it is obvious that the methods of law enforcement must address the issues of privacy protection from ethical, social and sectorial perspectives.
1. Privacy Regulations
As far as Turkish Law is concerned, there is no direct law regulating the drone operations except for the Unmanned Aircraft Systems Instruction introduced by the Ministry of Transport, Maritime Affairs and Communication General Directorate of Civil Aviation on 22.02.2016 (“Instruction”) . Although the Instruction regulates the registration, operation and licensing matters, it does not involve any substantial rule regarding the privacy issues.
Having said that, operational and distance limitations of the Instruction for an aerial work with an Unmanned Aircraft Systems flying over private properties, can be considered as precautions with respect to the privacy. Pursuant to Article 19 of the Instruction, it is forbidden to operate any class of Unmanned Aircraft Systems above private properties without the prior permission of the property owner. The Instruction also imposes limits on the operation of drones similar to countries such as Japan, Spain, and Holland. For instance, in Japan, Tokyo Metropolitan Government has banned people from flying drones in metropolitan parks and gardens. Similar to that, in Turkey operating drones 50 meters near private properties and people is also prohibited. Last and perhaps the most important legal arrangement on privacy issues in drone operations is Article 27/4 of the Instruction. According to such, Unmanned Aircraft Systems pilots are obliged to respect privacy of private life; otherwise, the relevant provisions of the Turkish Criminal Code shall be applied.
Although all provisions mentioned above are positive improvements on the protection of private life part, they are not adequate. Consequently, since there is no substantial drone specific privacy regulation, courts implement the relevant provisions of different laws in the event of a privacy issue arising from drone operations.
All the legislation relating to privacy based on the fundamental right of privacy of private life is the one which is stipulated under the Article 20 of the Constitution of Republic Turkey. Under the Constitution, everyone has the right to demand respect for his/her private and family life, and privacy of private or family life shall not be violated by the acts of a third person. Under the auspices of this article, another legal protection which shall apply to breach of privacy by drones, is stated in the Turkish Criminal Code.
According to Article 134 of Turkish Criminal Code; any person who violates the secrecy of private life, shall be punished with imprisonment from six months to two years, or imposed punitive fine. In case of violation of privacy by use of audio-visual recording devices, the minimum limit of punishment to be imposed may not be less than one year.
Moreover, according to Article 93 of the Turkish Civil Aviation Law which lists prohibited actions, shooting photographs of some particular locations are prohibited.
Amid many other privacy concerns, Turkey introduced Personal Data Protection Law on 7 April 2016. Pursuant to the Code, real or legal persons who violates the provision therein may be charged with imprisonment from 1 to 3 years and/or shall be fined with administrative fines starting from TL 5,000 and to TL 1,000,000 (approx. $ 1,350 - $ 270,000).
2. EU Perspective
As close neighbors, the relationships and collaboration between the EU and Turkey have always been a strong. Following the Customs Union agreement which came into force on December 31, 1995 many fundamental Turkish legislations such as criminal code, code of obligations, commercial code, etc. have been amended; most being adopted from European states. Considering these facts, in the process of developing drone specific privacy regulations, it is substantially important to closely follow up the developments in the EU.
Having a close look at the EU; we are encouraged to state the legislation on the use of drones in EU no longer reflects the technological developments in this area. There is necessity to ensure a common framework throughout the EU because same legal gaps exist on drone activities in EU countries. Both the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union states that everyone has the right to respect for his privacy and family life, his home and correspondence. EU is looking for a common approach between Member States to avoid privacy concerns for civil and commercial use of drones. European Commission commenced working on drones in 2012, and adopted the first Working Document towards a European Strategy for the development of Civil Applications of Remotely Piloted Aircraft Systems (“RPAS”) and establishing a European RPAS Steering Group and similar legal arrangements. Besides, opinion 01/2015 on Privacy and Data Protection Issues relating to the Utilization of drones should be noted for solving individuals’ privacy issues.
Scrutiny and violation of privacy have always been among the most unsettling things for the humankind. 1984, the famous novel of George Orwell, specifically describes small flying devices that roam neighborhoods and peer into windows; nowadays we call them drones. Although generally, people appreciate every technological development no matter how they are used, as time goes by, they begin to give reactions to disturbance of their privacy.
In the light of growing concerns, recently, the drones have been banned in many countries because of their violation of the privacy of the private life. However, as a growing industry, banning drone operations would only discourage commercial activities of drones and the technological developments in the sector. Despite all the legal arrangements on drones, there is still a legal gap for drone use especially on the privacy of private life. Such absence, leave courts with no choice but applying the provisions of general laws, which are not always suitable for violations by drones.
Considering all these facts, it can be clearly said that the legislations are falling behind of the technological developments. In order to moderate the privacy problem, from the operation of our most recent technological toys in our daily life, and protect our privacy; the innovators and law-makers collaborate on the introduction of new rules with a focus on privacy.
The concerns raised by the law makers must be heard in order for drone technology to get widespread acceptance by the society.
ABOUT THE AUTHOR: Serap Zuvin & Alara Unal
Serap Zuvin is the founding partner of Serap Zuvin Law Offices. Ms. Zuvin has specialized on corporate finance. She has been extensively involved in various cross-border joint ventures and mergers and acquisitions. She has established the subsidiaries and/or representative offices of multinational companies in Turkey.
Alara Unal is a legal trainee at our office, she primarily focuses on M&A transactions, corporate law matters, commercial law and aircraft finance.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.