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Care needed when capture of data outstrips data analysis

There are a number of key legal questions which need to be considered in relation to the use of drones in the construction industry.

What impact will such use have on the land adjacent to the construction site, are there perhaps privacy issues to be considered?

Can footage gathered by a drone start the clock ticking on any time requirements to notify claims?

What if the footage being gathered records some illegal activity; is there an obligation to provide that to the authorities?

In any event, does the very recording create a body of ‘corporate knowledge’ which might create a corporate risk?

Privacy

The question to be asked is whether the almost inevitable invasion of privacy is a proportionate response to a real and pressing issue.

Inevitably there will be the need for a Privacy Impact Assessment, but there is little guidance as to what will be acceptable as the rules currently apply to CCTV.

In addition, the records produced by drones may well be subject to the Data Protection Act as images of people and their homes, even if collateral to the main purpose of the recording, may be covered. What of nuisance and trespass? Certainly a drone could create liabilities here.

Claims

Many contracts (see NEC clause 61.1 or FIDIC clause 20.1) require claims for extensions of time or additional payment to be made within a certain time.

Is all of the footage however going to be reviewed in sufficient detail at the time to comply with these obligations?

We are in an age where the production and capture of data is increasing at a pace that outstrips data analysis so some care is needed in this area.

Illegality

What you do if your drone footage showed illegal activity being carried out on site?

While there is no general duty to report most crimes to the police in England acquiring the information can create an unintended dilemma.

If the individual is reported will concerns over a “corporate big brother” arise? If the individual is not reported might the company become complicit in the criminal actions of the individual if they continue?

Liability

Where could that chain of events end?

It is possible that the additional knowledge and access to data generated through drones could increase the risk of corporate manslaughter charges being pursued successfully.

Where senior management were or ought reasonably to have been aware of a failing on site, because it was highlighted by its own drones, a gross breach or conduct which falls far below what can reasonably be expected of the organisation, seems more likely.

With the speed that the drone market is developing the risk to benefit ratio is constantly changing.

As major contractors start to use drones first the commercial and then the legal issues will no doubt become clearer.

Rob Horne is a partner in the engineering & construction and dispute resolution teams at Simmons & Simmons

 

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