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Sweden: Law to Allow Photo Drones Passed

(Aug. 28, 2017) On June 20, 2017, the Swedish Parliament passed legislation that will allow private individuals to operate drones with photo capabilities without a prior license/approval from state authorities. The new provisions take effect on August 1, 2017. (Kameraövervakningslagen och möjligheterna att använda drönare [Camera Surveillance Act and the Possibility of Using Drones], Justitieutskottets betänkande [Justice Committee Report] 2016/17:JuU31, RIKSDAGEN.)

Currently, using drones to capture pictures requires a prior permit from state authorities. (Elin Hofverberg, Sweden: Supreme Administrative Court Defines Prohibited Camera Surveillance, GLOBAL LEGAL MONITOR (Nov. 23, 2016).) As of August 1, 2017, drone operators will no longer be forced to obtain such licenses. (Justice Committee Report, supra.)

The legislation has created debate on the protection of privacy rights in a changing technology landscape.  According to the government, the integrity of the public will continue to be sufficiently protected through the missbruksregel (abuse rule) in the Swedish Privacy Act. (Personuppgfitslagen (PUL) (Svensk författningssamling [SFS] 1998:204), NOTISUM.) The missbruksregel requires that prior to every drone flight, the operator must determine whether he can perform the flight without violating PUL (5a §2 st PUL.)  The missbruksregel specifically states that an action “may not be performed, if [the action] violates personal integrity.”  (Id.)  Thus, before each use of a camera-equipped drone, the operator (pilot) will have to determine whether a flight can be completed without violating another person’s integrity.  (Kan jag få ersättning om jag kränks enligt missbruksregeln? [Can I Receive Compensation If I Am Violated According to the Abuse Rule?], DATAINSPEKTIONEN (last visited July 11, 2017).)

Reactions to the Legislation

The Swedish Data Protection Authority (SDPA) opposed the proposed law during the referral process, recommending that the law not be adopted, as it provides less protection of privacy than the current law. The SDPA also noted that it was not clear from the law what usage would qualify as one having a “legitimate purpose.”  (Kameraövervakningslagen och möjligheterna att använda drönare för berättigade ändamål [The Camera Surveillance Act and the Possibilities of Using Drones for Legitimate Purposes], DATAINSPEKTIONEN (Feb. 13, 2017).)  Now that the amendment has passed, the SDPA has issued a new “Q and A Guide” on the applicability of the new rules, but the Guide does not specify what a legitimate purpose is. (Kameraövervakning [Camera Surveillance], DATAINSPEKTIONEN (last visited July 11, 2017).)

However, the Guide does provide principles of what to consider when determining whether one is using a drone for a legitimate purpose. According to the Guide, the operator must weigh the interest of  using a drone against the interest of the person who might be violated by its use.  “Factors to be considered include the purpose of the surveillance, the need for the surveillance, the level of violation, the time and scope of the surveillance, what information will be provided to those filmed, how long the information will be saved, and how many persons  will access the filmed material.” (Vilka regler gäller för kameraövervakning med drönare? [What Rules Apply to Camera Surveillance With Drones?], DATAINSPEKTIONEN (last visited July 11, 2017).)  Under the new rules, a person has the right to claim compensation for violation of his or her integrity by a drone. (Kan jag få ersättning om jag kränks enligt missbruksregeln?, supra.)

The amendment has been welcomed by interest groups and by the drone industry. (Remissvar [Referral Response], UASS (Jan. 31, 2017); Remissvar [Referral Response], Stockholm Chamber of Commerce  website (Mar. 1, 2017).)

Future Changes – Privacy Protections

The Swedish Privacy Act is set to be repealed next year, as Sweden is required to implement new personal protections adopted by the European Union by May 6, 2018. (Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data by Competent Authorities for the Purposes of the Prevention, Investigation, Detection or Prosecution of Criminal Offences or the Execution of Criminal Penalties, and on the Free Movement of Such Data, and Repealing Council Framework Decision 2008/977/JHA, EUR-LEX.) Consequently the newly adopted rules will need to be changed to reflect changes in Swedish privacy regulation.

As part of implementing the EU Directive, the Swedish government asked the (Swedish Parliamentary) Integrity Commission to produce a government report on the status of personal integrity in Sweden. (Statens Offentliga Utredningar [SOU] 2016:41 Hur står det till med den personliga integriteten? [How Is Personal Integrity Doing?] [Government Report], REGERINGEN.) The Commission found that camera-equipped drones pose a greater threat to personal integrity, regardless of intent, by virtue of their documenting sensitive situations that take place in “for instance gardens or locker rooms.” (Id. at 109.)  The Commission also considered other technology advancements, such as dashboard cameras, and “Google Glass” (camera-equipped glasses that can film a person’s entire day) and its relationship with the right of privacy.  (Id. at 548-549.)  The Commission went on to argue that because of their far-reaching scope, these technologies pose a special risk to the privacy of others and may even cause a chilling effect in which people are afraid to exercise their rights as they feel constantly monitored.  (Id. at 551.)