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Beware of the legal implications of using drones

The use of drones is increasing on construction sites - but contractors should beware when deploying them, particularly when using them to monitor progress on sites.

Increasingly, construction companies are using unmanned aerial vehicles (UAVs), or drones as they are colloquially known, for a variety of purposes including conducting aerial surveys and monitoring the activities of staff and subcontractors on sites, in particular their compliance with health and safety policies.

While the commercial benefits of using drones on the construction site are not in dispute, their use has a high potential to infringe the privacy rights of individuals whose images are captured by the technology.

Informed individuals

Under data protection law, individuals must be informed of how their personal data (i.e. their image) is being processed.

Covert ‘spying’ on employees or subcontractors would, therefore, be completely unlawful.

While it may be easy to inform employees and subcontractors that drones are in use, a major issue is that on many occasions where the drone is operating from a high vantage point, individuals unconnected with the building site are unlikely to realise that they are being recorded.

It is therefore important to come up with creative ways of providing individuals with notice that the drone is in use and how their images may be used and disclosed.

The UK data protection authority (DPA) - the Information Commissioner’s Office - suggests that this could involve wearing highly visible clothing identifying yourself as the UAV operator or placing signage in the vicinity of the area in which you are operating the drone.

Legal grounds for use

Informing individuals of how you are using drones is only one part of the puzzle.

Companies must also have a legal ground under data protection law to use drones and this is the trickiest part.

There are two common legal grounds that companies tend to rely on: firstly, the consent of the individual; and second: legitimate business interests.

However, in most circumstances it will be impossible to obtain valid consent of employees as consent must be ‘freely given’ which is viewed as impossible in the employment context.

Companies cannot argue that the use of drones is in their ‘legitimate business interest’ if it prejudices the rights and freedoms or legitimate interests of the affected individuals – something which is very likely if drones are used without having due regard to privacy concerns.

Reducing risk

What then can construction companies do to reduce the risks of privacy intrusion so that their use of drones will not be unlawful?

  • Conduct a privacy impact assessment (PIA) before undertaking to use UAV technology - a PIA is a tool that you can use to identify and reduce the privacy risks of projects that involve personal data
  • UAVs should not be used continually: it is essential that the recording on the UAV can be switched on and off when appropriate
  • Ensure that any data you have collected is stored securely; for example by using encryption, and that the data is retained only for the minimum time necessary for its purpose and disposed of appropriately at the end of this time period
  • Reduce the risk of collateral intrusion by procuring a device that has restricted vision so that its focus is only on one place

It is also important to note that the use of drones may also trigger the obligation to notify local data protection authorities.

In a number of European countries it may also be necessary to obtain approvals from the local DPAs which can be a time-consuming and complicated exercise. 

There may also be serious employment law consequences of introducing drones on to the building site.

It may constitute a change in the terms of employment which may require explicit consent of the staff and potentially consultation with or approval from works councils or trade unions. 

David Savage is partner and head of construction, engineering & projects, and Janine Regan is a data protection lawyer, at Charles Russell Speechlys

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