Drones are increasingly popular in Singapore –professional and even hobby photographers are using them to achieve camera angles never thought possible before. But while some may think the sky’s the limit for their new toys, there are laws regulating their use.
This article is written by Ronald JJ Wong and originally published in Law Gazette. The “Article in 60 Seconds” is contributed by Ben Nadarajan. You can read the full article below after the scannable points.
The Article in 60 Seconds
- Commercial drones are increasingly popular not just for hobbyist but also businesses to deliver goods, food and for photography
- Until recently, the laws governing drones in Singapore were very limited
- In April 2015, the Unmanned Aircraft (Public Safety and Security) Bill was introduced to regulate the use of commercial drones
- Key things to know if you want to use drones
1. You need a permit from CAAS to operate drones for commercial purposes or if it is >7kg
2. You must make sure the drone is airworthy and fly it responsibly (e.g. line of sight, avoid crowded places and maintaining safe distance)
3. It is an offence to capture images in protected areas (e.g. military)
4. Do not disrupt any special events like National Day
5. You might contravene the PDPA if you collect personal data with your drone
6. You could be charged if deemed a public nuisance under the Protection from Harassment Act and certain sections under the Penal Code
If you would like to get legal advice on the usage of drones or any other legal matters from Ronald Wong, you can book a Quick Consult with him. With an AsiaLawNetwork Quick Consult, Ronald will call you back within 2 days for a transparent, flat fee starting at S$49 to give you legal guidance on your legal challenge.
Drones or unmanned aerial vehicles have become ubiquitous, prompting the authorities to introduce a regulatory framework for their commercial and recreational usage. This note explains the new legislative amendments and policy regulations in this area.
Legal Regulation of Drones Or Unmanned Aerial Vehicles in Singapore
Commercial drones (or unmanned aerial vehicles or remotely piloted aircraft) have become ubiquitous of late, deemed as a type of disruptive technology. For instance, many commercial and hobby videographers and photographers in Singapore today use drones to achieve camera angles previously only possible by way of rental of helicopter. Drones are now also used for delivery of goods (known as parcelcopters) by companies such as Amazon and DHL, and even as robotic waiters delivering food in a Singapore restaurant.1 Previously, the regulatory framework in respect of commercial and recreational drone usage was very limited. The only relevant regulations were paras 64C to 64F of the Air Navigation Order (Cap 6, OR 2) (“ANO”) relating to “model aircraft”, which is defined in Regulation 64I as “any aircraft that weighs not more than 7 kilogrammes without its fuel and that is capable of being flown without a pilot”. However, the Singapore Parliament introduced the Unmanned Aircraft (Public Safety and Security) Bill (“UA(PSS)”) on 13 April 2015. The UA(PSS) is, therefore, a welcomed regulatory framework. Further, the Civil Aviation Authority of Singapore (“CAAS”) has announced certain amendments to the ANO. This note discusses significant provisions in the Bill and amendments to the ANO which drone users, whether for commercial or recreational purposes, should take note.
Under the existing regulations in the ANO, a person cannot fly or operate any model aircraft or unmanned airship: (i) at any altitude within five kilometres of any aerodrome; or (ii) at an altitude higher than 200 feet above mean sea level in any place beyond five kilometres of any aerodrome, unless he had a permit to do so (para 64C(1), ANO). Further, a “person shall not fly or operate a model aircraft or an unmanned airship unless he is reasonably satisfied that the flight of the model aircraft or unmanned airship, as the case may be, will be conducted safely and will not pose a hazard to any person, aircraft or property” (para 64(5)). Further, under para 64D, a person may not fly or operate a drone: (i) within the boundaries of any danger, restricted or prohibited area; or (ii) in a manner which is likely to endanger the safety of any person, aircraft or property.
Aerodromes are defined in para 2, ANO as “defined area on land (including any building, installation and equipment) used or intended to be used, either wholly or in part, for the arrival, departure and surface movement of aircraft”. Presently, the aerodromes certified under the ANO include Changi Airport, Seletar Airport, Paya Lebar Airport, Sembawang Aerodrome and Tengah Aerorome. However, as pointed out by another commentator,2 the definition of “aerodrome” in para 2 is sufficiently wide to also include various installations such as helipads and airstrips. As such, it is difficult to identify with precision whether any given geographical area within Singapore is within or beyond five kilometres of an aerodrome. It may, therefore, be prudent to apply for an exemption permit, which may be granted by the Chief Executive Officer of CAAS pursuant to para 64C(2).
Amendments to ANA
In the light of the existing regulation, we turn to consider the UA(PSS). Part 1 and Part 2 of the UA(PSS) amends two existing legislation: the Air Navigation Act (Cap 6) (“ANA”) and the Public Order Act (Cap 257A) (“POA”) respectively.
First, the interpretation section, s 2, of the ANA is amended to include various new definitions, inter alia, such as “command and control link”, “unmanned aircraft”, “remotely piloted aircraft” and “operator” of an unmanned aircraft. “Unmanned aircraft” is defined as “an aircraft that may be flown or used without any individual on board the aircraft to operate it”. An “operator” is defined as “a person engaged in, or offering to engage in, the operation of the unmanned aircraft, and where the unmanned aircraft is a remotely piloted aircraft, includes—(a) the person who causes the remotely piloted aircraft to fly; and (b) the remote pilot of the aircraft with duties essential to the operation of the remotely piloted aircraft, such as manipulating the flight controls as appropriate during flight time, if the remote pilot is not the operator”.
Regulations Regarding Air Navigation Safety, Public Safety, Aircraft Registration Etc
Second, ss 3 and 3A of the ANA are amended to empower the CAAS, with the approval of the Minister of Transport, to make regulations in respect of the safety of air navigation and/or protection of public safety, and control of eg “aircraft registration, airworthiness and maintenance, operator licenses and operating rules” (Explanatory Statement to the UA(PSS)).
A brief reference to the regulatory approaches taken in other jurisdictions would be instructive in this regard. In the UK (see the UK Air Navigation Order 2009 (Cap 393)), drone operators are required inter alia to: (i) apply for permission to operate drones if it is on a commercial basis (a similar approach is taken in the US known as s 333, Federal Aviation Act (“FAA”) exemptions) or within congested areas; (ii) register their drones and apply for certificates of airworthiness for their drones where the drones are above a certain size; (iii) complete certain operator courses or apply for operator licenses. In respect of general safe operation of drones, arts 166-167 of the UK Air Navigation Order 2009 (Cap 393) provide inter alia that the operator: (i) must be “reasonably satisfied that the flight can safely be made”; (ii) “must maintain direct, unaided visual contact with the aircraft sufficient to monitor its flight path in relation to other aircraft, persons, vehicles, vessels and structures for the purpose of avoiding collisions”; (iii) must not fly the drone “at a height of more than 400 feet above the surface” (subject to exceptions); (iv) must not fly “over or within 150 metres of any congested area … over or within 150 metres of an organised open-air assembly of more than 1,000 persons … [and] within 50 metres of any vessel, vehicle or structure which is not under the control of the person in charge of the aircraft”; (v) must not fly the aircraft within 50 metres of any person other than the operator, but during take-off or landing, the aircraft must not be flown within 30 metres of any person other than the operator. Across the Atlantic, the US has only recently issued a Notice of Proposed Rulemaking (similar to a Public Consultation on a proposed bill in the Singapore context) in respect of small drones, entitled “Operation and Certification of Small Unmanned Aircraft Systems”. The proposed rules in the Notice are similar in principle to those in the UK Air Navigation Order 2009 (Cap 393).
It is to be anticipated what regulations CAAS may make in respect of the licensing of drones and operators. CAAS has specifically announced3 (“13 April Announcement”) that the following require a permit:
1. Flying or operating unmanned aircraft which weigh more than 7kg in total weight (ie weight of laden aircraft, including fuel, payload and equipment); and
2. The flying or operation of unmanned aircraft for certain activities:
a. Commercial purposes;
b. Specialised services (eg activities relating to agriculture, construction, surveying, observation and patrol, flying display performance for the purpose of providing an exhibition or entertainment at an organised event, search and rescue, aerial advertising, and research and development).
Further, it may be surmised from the 13 April Announcement that there will be certain general regulations or guidelines for flying or operating drones for recreational or private use including inter alia: (i) ensuring the drone is safe for flight; (ii) maintaining line of sight with the drone; (iii) ensuring a sufficient distance between the drone and people, property and other aircraft; (iv) prohibition from flying over crowded places; (v) prohibition from flying over moving vehicles which may endanger or distract drivers or such as to interfere with emergency service providers; and (vi) ensuring that transmitting devices of the drone complies with Infocomm Development Authority (“IDA”) requirements on short range devices. In the UK, it has been recently reported that a man has been charged for flying a drone over the Houses of Parliament, Queen Victoria memorial and various football stadiums during matches as well as failing to maintain direct, unaided visual contact with the drone.4 In April 2014, a man was convicted for dangerously flying a drone within 50 metres of a bridge and flying over a nuclear installation, the BAE System submarine-testing facility.5According to the report, the operator alleged that he “couldn’t have controlled it” and that the radio and homing technology failed. These cases are cautionary tales for recreational drone operators in Singapore in the light of the impending regulations.
With respect to the IDA requirements, it should be noted that generally the possession of telecommunication or radio-communication equipment requires a license under (sectionsss 5 and 34 of) the Telecommunications Act (Cap 323) (“TA”). However, short range devices (“SRD”) found in drone remote-control operation systems may be subject to an exemption from licensing if they are and: (i) in a manner that does not interfere with other radio-communication networks authorised by IDA; (ii) in a manner that does not exclusively protect the SRD from interference and thus shares the radio frequencies with other radio applications; (iii) the transmitter output power is below the maximum approved field strength or power stipulated in the First Schedule of the Telecommunications (Exemption from ss 33, 34(1)(b) and 35) Notification; and (iv) the uses of these devices are localised (see generally s 5, 5A, 33-35, TA and Regulations 48, 70 of Telecommunications (Radio-communication) Regulations (Cap 323, Rg 5, Rev Ed 2002)). Separate regulations also exist for dealers selling SRD telecommunication equipment under the Telecommunications (Dealers) Regulations (Cap 323, Rg 6, Rev Ed 2004).
In the author’s view, it is the detailed regulations on “aircraft registration, airworthiness and maintenance, operator licenses and operating rules” which would determine the future landscape for drone usage, especially for commercial purposes. The relevant regulatory framework should sufficiently accommodate future technological advancements and provide a broad regulatory space for commercial applications of drones. For instance, a requirement of maintaining line of sight with the drone for the purposes of preventing air collisions must be questioned in the light of improving first-person-view on-screen display technology. Further, query whether a segregation of airspace and stipulation of flight altitudes in respect of commercial trans-island flights would also address safety issues.
Third, s 7 of the ANA is amended, and new ss 7A to 7C are inserted, to introduce certain regulatory offences relating to drones. Under the new s 7(2), a strict liability offence is created whereby the operator of an unmanned aircraft which captured a photograph, film or video (generally referred to as “photograph” under s 7(5)) of a “protected area” through equipment on board, and the person taking the photograph if he is not the operator, shall be guilty of the offence. A “protected area” is an area declared by the Minister of Transport pursuant to s 7(1) to be as such.
The new s 7A introduces a strict liability offence whereby the operator of an unmanned aircraft operates it to fly at any height over any part of any “protected area”. The prosecution need not prove that the accused knew or had reason to believe that the area is a protected area or that the unmanned aircraft had photographic equipment on board. There are only two express defences under s 7(3)(b) and 7A(3)(b). First, the photograph was taken because of some “unavoidable cause” such as “weather conditions”. For instance, the wind blew the drone to fly above a protected area or a third party hijacked the drone to cause it to fly over a protected area. Second, the accused had the necessary permit from a competent security officer designed by the Minister of Transport and charged with the responsibility of homefront security. The offences are stipulated as arrestable offences under ss 7(4) and 7A(4). Given the strict liability nature of the offences, drone users should take all precautions to identify if they are operating their drones in the vicinity of protected areas and to plan for a sufficient buffer distance from these areas. The Protected Areas (Consolidation) Order (Cap 256, O 1, Rev Ed 1990) sets out several plausible protected areas. Generally, these are the military areas, and key installations such as radio transmission installations, oil refineries, the airport and certain portions of the small offshore islands. Given that such areas are scattered across the island, it is likely that trans-island drone flights may expose the operator to liability.
The new s 7B introduces a strict liability offence against operating an unmanned aircraft to fly indoors or at any height over any area in Singapore carrying a prohibited item when flying. (Prohibited items are defined under s 7B(4)). Section 7B(2)(b) provides for an expressly stipulated defence if the accused “did not know, and could not reasonably have been expected to know, that the unmanned aircraft carried a prohibited item when flying”.
The new s 7C introduces another strict liability offence against operating an unmanned aircraft to fly indoors or at any height over any area in Singapore and the unmanned aircraft discharges anything, whether gaseous, liquid or solid. However, s 7C(2)(a)-(c) sets out three express defences. First, the accused did not “intentionally” or negligently (“want of reasonable care”) cause the discharge and “took all reasonable steps” to ameliorate the consequences, ie “stop or reduce further discharge … as soon as practicable after discovering the discharge”. In this respect, the burden would be on the accused to prove that he had conjunctively taken all “reasonable care”, did not “intentionally” cause the discharge and “took all reasonable steps” to mitigate the consequences. This sets a high threshold for drone operators and it would be prudent for them to take all necessary precautions to not fall afoul of this provision in the first place. Second, the discharge was the result of “damage, other than intentional damage, to the unmanned aircraft and all reasonable precautions were taken by the accused after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimising further discharge”. Third, the accused had a discharge permit from the CAAS. Apart from the foregoing defences, it is expressly stipulated in s 7C(3) that it is no defence that no death, injury, property damage or hazard was caused as a result of the discharge. In respect of the defence in s 7C(2)(b), “intentional damage” to the unmanned aircraft is defined as damage arising where the operator “acted with intent to cause the damage” or “acted recklessly and with knowledge that damage would probably result”. Presently, most drones are electric-powered. However, gas-electric hybrid drones are now being developed to increase flight time and payload. The new s 7C gives pause to businesses which may potentially use such drones because of the additional risk of fuel discharge (over and above existing potential discharge risks).
A new s 29G is introduced to empower authorised persons to do certain acts with respect to any unmanned aircraft which is reasonably believed to be operated in a manner that contravenes the ANA or any aviation safety subsidiary legislation, or that “poses a serious and an imminent risk to safety of the public”. The Explanatory Statement suggests that this includes a situation where a drone is “flying very low in a crowded place or too high into the flight path of commercial airlines on scheduled journeys”. This approach to safety regulation for drone usage is considerably discretionary as opposed to one that is with reference to clearly stipulated limits, eg exact amounts of safe distances. However, it is also a pragmatic one given that authorised officers on the ground and at the critical juncture may not be able to reasonably estimate relative distances or number of persons in order to exercise their statutory powers to prevent danger arising from drone usage.
Authorised persons may pursuant to s 29G(2): (i) direct drone operators to “end the flight of the unmanned aircraft, or land it, safely in the fastest practicable way” or to fly it “in the manner specified by” him; (ii) “with such assistance and by such force as is necessary … assume control of an unmanned aircraft”; (iii) “seize the unmanned aircraft and any component … or other thing” that he “believes on reasonable grounds … to be evidential material or needs to be seized to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating an offence”. To address concerns of wide discretionary powers, s 29G(3) provides that the Commissioner of Police or the CAAS may limit the scope of powers of the authorised persons. And s 29G(4) provides that any person who “without reasonable excuse” contravenes any direction by an authorised person under s 29G(2)(a) shall be guilty of an offence. Authorised persons for the purposes of s 29G refer to police officers or auxiliary police officers of or above the rank of sergeant authorised by the Commissioner of Police (s 29G(7)(a)); safety inspectors authorised by the CAAS (s 29G(7)(b)); or an individual with suitable qualifications and experience authorised by the CAAS (s 29G(7)(c)). Section 29G(8) expressly clarifies that s 29G does not derogate from s 201B of the Singapore Armed Forces Act (Cap 295), ie the power of the Minister of Defence to authorise the Singapore Armed Forces (“SAF”) to be deployed to inter alia detect and prevent any aerial threat to the defence or security of Singapore, eg intercept, capture or detain any aircraft.
Amendment of POA
First, the POA is amended to insert the definitions of certain key terms. Interestingly, the definition of “unmanned aircraft” in the POA expressly excludes balloons and kites as “these are unlikely to present a public order threat” according to the Explanation Statement. Given that the definition of the same term in the ANA is identical except for the express exclusion of balloons and kites, prima facie, this suggests that the authorities envisage the possible application of the ANA to balloons and kites, eg balloons and kites being used for photographic purposes in respect of protected areas (s 7(2)).
Second, s 26(2A), POA is inserted to inter alia prohibit a person from causing a prohibited item, any part of it, something contained in or on it, or something produced by it, to enter a “special event” area. While the provision does not make express reference to drones, the Explanation Statement makes clear that the intent is that rockets, remotely piloted aircrafts and other unmanned aircrafts may be declared as prohibited items under s 22(2), POA and accordingly, it may be illegal for a person to operate a drone to enter a special event area under s 26(2A), POA. This is also a strict liability offence subject to three express defences: (i) the accused did not intentionally or negligently cause the prohibited item or something in respect of it to enter the special event area (under s 26(2B)(b)(i)); (ii) there was a permit from the Commissioner of Police (under s 26(2B)(b)(ii)); or (iii) the accused had a “lawful excuse” to possess a prohibited item in a special event area. In regard to (iii), the Explanatory Statement clarifies that what is envisaged is where “everyday activities within homes, workplaces or schools that are in a special event area” may become subject to s 26, POA, and that it could be a “lawful excuse” to possess prohibited items in respect of such activities. For instance, it may be a lawful excuse for a school to possess a loud hailer or a large flag although it is within the geographical boundaries of a “special event” area. The burden would be on the accused to prove the lawful excuse. However, it is pertinent to note that from the wording of the new s 26(2A)(a) and the Explanatory Statement, the lawful excuse defence appears to be available only for possession of prohibited items and not the “use” of a prohibited item in a way that causes it or something in relation to it to “enter the special event area”. Thus, where for instance a workshop is situated within a special event area and typically uses drones to transport certain materials, it may not be availed of the lawful excuse defence. Given that, it would be prudent for persons who are situated within the geographical boundaries of a “special event” area to inquire into their scope of permissible activities during the period of the “special event”.
Third, s 32, POA is amended to prohibit a person from operating an unmanned aircraft in a manner that “disrupts, interferes with, delays or obstructs the conduct of a special event, or any activity associated with the special event; or that interferes with the reasonable enjoyment of” such events or activities. Again, this is a strict liability offence subject to the express defence in s 32(3)(b) that the flight was “not due to any want of reasonable care”.
Fourth, s 32A, POA empowers authorised persons to do certain acts should drones be operated in a manner that contravenes ss 26 or 32, POA or that “poses a serious an imminent risk to the security or safety of persons lawfully attending a special event”. In this respect, the powers set out therein, and other related provisions, are similar to those set out in the new s 29G, ANA discussed above. Authorised persons for the purposes of s 32A refer to police officers or auxiliary police officers of or above the rank of sergeant authorised by the Commissioner of Police (s 32A(7)).
The Minister of Home Affairs may declare an event to be a “special event” under s 21, POA. In this respect, the Ministry of Home Affairs has previously clarified in an advisory that “[o]nly major events that are of national importance will be declared as special events”.6 For instance, the National Day Parade 2014 was declared a “special event” under the POA.7 The notification of such declarations under s 21, POA will typically describe the geographical boundaries of the “special event” area, as well as set out a list of “prohibited items” declared under s 22, POA.
Other Legal Considerations
It should be noted at this juncture that the statutory offences discussed above do not preclude the possibility of civil claims under private law as well as the possible invocation of other statutory regulations.
With respect to plausible civil claims, a person who suffered damage to person or property in connection with a drone may sue under the tort of negligence. Alternatively, there may be a claim on the basis of rule in Rylands v Fletcher (1868) LR 3 HL 330 with respect to discharge from the drones.
With respect to other statutory regulations or offences, the Personal Data Protection Commission has issued an advisory guideline to clarify that photography involving the capture of personal data could constitute a contravention of the PDPA.8 Hence, the operation of drones for photographic purposes may potentially give rise to PDPA compliance risks. Other possibly relevant legislation would include the Protection from Harassment Act 2014, the Community Dispute Resolution Tribunals Act (which will likely come into force second-half of 2015) and offences under the Penal Code (Cap 224), eg s 268 for public nuisance.
The UA(PSS) and the CAAS 13 April Announcement regarding amendments to subsidiary legislation in respect of drone regulation are welcomed. However, it remains to be seen what the specific scope and extent of regulations would entail. In particular, those relating to aircraft registration, airworthiness and maintenance, operator licenses and operating rules. Such regulations would likely have substantial impact on business costs of utilising drones for commercial application. Both the recreational drone operator and businesses intending to harness drone technology would do well to watch this space, and if possible, provide feedback to the relevant authorities to shape the regulatory landscape to be technology- and business-friendly while ensuring safety and other legitimate interests are not compromised.