On the 21st of October 2016, the Supreme Administrative Court of Sweden severely limited the commercial use of camera drones in places to which the public has access to by labelling such drones as surveillance cameras. The primary rule is that camera surveillance in places to which the public has access, requires a permit. A person may receive such permit if the need of surveillance is deemed to be more important than the integrity of the individuals subject to the surveillance, which for example may be the case when the purpose is crime prevention or prevention of accidents. As there is a very limited scope of services which may warrant a camera surveillance permit, the growing industry of companies providing services related to camera drones has been hit hard.
In the case before the court, the claimant tried to argue that his drone with a camera attached to it, did not constitute a surveillance camera as set out in the Camera Surveillance Act (2013:460). In short, cameras or other devices that are mounted in such way that they can be used for human surveillance, without being maneuvered on the spot, are seen as surveillance cameras according to the Act.
The claimant submitted that the camera was not fixed to the drone, which would prevent it from being seen as “mounted”. The court concluded that as the camera would be attached to the drone on a reoccurring basis, the camera fulfilled the requirement. This may imply that when a camera is attached to a drone and used on only one occasion, it does not necessarily constitute a surveillance camera. In relation to whether the drone was maneuvered on the spot, the court took a restrictive approach and stated that as the drone was controlled and otherwise handled from the ground, there was a clear separation between the flying drone and the place where the drone was maneuvered. This could be compared to a hand camera or a camera attached to a bike that are deemed as being maneuvered on the spot. In respect of whether the drone could be used to surveilling humans, the claimant submitted that it could not as the drone had to be flown on a height which did not allow for the camera to take pictures of humans in such way that people could be identified. The court did not agree with the claimant’s argument and stated that as the drone physically could be flown on a lower height and thereby produce pictures where humans were identifiable, the camera drone could be used to surveil humans. In conclusion, the camera drone was seen as a surveillance camera and therefore, the claimant would need to apply for a permit in accordance with the Camera Surveillance Act.
The Act only applies to camera surveillance in Sweden if the company that conducts the camera surveillance is established in Sweden or in a country outside of the EEA. A company may be established in more than one Member State and in determining where a company is established, multiple aspects have to be considered, not only where the company is registered. Furthermore, even if the Camera Surveillance Act does not apply, legislation of the country where the EEA company is established may still regulate the activities of such company flying camera drones in Sweden. It is also important to keep in mind that “to conduct” camera surveillance does not only include the actual performance of the surveillance but may also encompass instructing subcontractors to perform certain operations within such surveillance.
The Camera Surveillance Act is currently subject to review in order to, among else, determine how it may be adapted to modern technology. Nevertheless, as the verdict has had a severe impact on the industry and as companies try to find alternative solutions, it is likely that we soon will see more cases related to the applicability of the Camera Surveillance Act and camera drones. More importantly; it is necessary to keep in mind that this matter is a matter of privacy rather than bureaucracy; looking at the rationale behind the Camera Surveillance Act which is to protect the personal integrity of individuals. We are curious to see if the case will trigger rapid business development in the drone industry – looking to solve the challenge with the drones’ collection of excess information (personal data) while still managing to deliver value to the customers.