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Drones: a classic case of technology moving faster than the law

2nd March 2018

     

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By Phillip Kent and Eitan Stern

Phillip Kent and Eitan Stern contend that there is a need to amend drone regulations so that the development of this industry is no impeded

Drones are, without a doubt, a supreme example of the twenty- first century’s technological advance. Remotely piloted flight was a foreseeable development in aviation for many years, particularly with the onset of the advanced avionics with which modern aircraft are equipped. In the week when this article was written, we witnessed Elon Musk’s spacecraft autonomously return to earth and a manufacturer test-flying a passenger-carrying drone. And that was only in one week. However, do not let the simplicity of acquiring and flying a drone deceive you: taking to the skies is a complex matter that cannot be taken lightly.

Effective mid-2016, operating a drone for any purpose other than private flight requires a large amount of compliance measures. Private use of a drone is not even entirely excluded. Users still need to comply with the rules of the air and other administrative matters. Ignoring these rules is not a matter worth overlooking either, with fines of up to R160 000 or ten years imprisonment, not to mention the civil liability claims for operating illegally if damages are incurred. So, flying is not only an aviation matter, but also a legal one.

These ‘new’ drone regulations have resulted in mass grousing across many industries – some valid, some less so. To overly summarise the situation, the regulators were not able to prepare themselves for the surge in drone use and the mass of new machines taking to the skies. The slow service, understaffing and poor understanding of the legislation the regulator is tasked with overseeing are not helping the growth of this now booming industry. Businesses that have invested heavily in drone technology are being hindered by the regulators’ inability to acclimatise themselves to the new aerospace industry. As a result, many have chosen to operate illegally.

What is needed to rectify this short- coming is for the drone and aviation community to request appropriate amendments to drone regulations, effective and sustainable development of the aviation regulators and a general recognition by South African law that the skies have fundamentally changed and they need some attention so that our entrepreneurs can do what they do best and get to work. Either that or our entrepreneurs will do what they do second best – they will get a lawyer who will go to work.

Notwithstanding, the context of these regulations do not justify the criticism levelled against their existence. Above us right now, invisible to the naked eye, are over 100 years of aeronautical rule refinement. Manned aviation has tirelessly (and largely successfully) refined aviation conduct to the extent that it is one of the safest forms of transport available today. The Cape Town–Johannesburg air route is the twelfth-busiest passenger air route in the world. Fatalities: zero.

Enter remotely piloted flight. There are two fundamental matters that make remotely piloted flight unique, thus requiring legislative intervention: operating an aircraft, for the first time in aviation history, is open to everyone. The barriers to entry are now very low; most people who can afford a smartphone can afford a drone. Secondly, remotely piloting an aircraft has removed the first law of aviation safety – the law of self-preservation. We have a saying among flight crew: “Pilot messes up, pilot dies. Anyone else messes up, pilot dies.” Since the first flight, if a pilot behaves appropriately, the pilot survives. This (in most cases) induces a foundation of caution that is then built on from there through safety management systems and proficiency-based training. Drones lack this – there are no immediate, life-threatening repercussions to operating a drone irresponsibly.

To simplify the situation for the layman reader – it is the equivalent of the invention of a remotely controlled car that can be bought from a toy store by any person or child – licensed or not – and being driven on the N1 highway in the same lanes as cars, trucks or buses.

It is a combination of this open access to drones and the loss of the law of self- preservation that makes the integration of remotely piloted and manned aircraft into the same airspace an extremely tedious task. The laws in place are not a matter of restricting drones so much, but respecting the sanctity of human life and acknowledging the risks associated with flight, and mitigating these risks accordingly through rules and regulations.

The commercial use of drones, for the time being, is an imperfect area of operation. The regulator is unable to handle the volume of applications before it, has failed to update the original text to reflect the advances inherent in drone technology and has generally failed to meet its mandates. However, the regulation of drones allows aircraft to operate, safely, in areas and manners that were unimaginable a decade ago. It is a classic modern conundrum – essentially, the technology is moving faster than the law. In this instance, the technology does not seem to be slowing down. What we need now is effective regulation from an organised regulator that allows us on the ground to continue to admire the airspace above safely while not stopping the next Wright Brothers from building a new technology that can change the world. And we need all this to happen before someone gets hurt.

 

Kent is the author of The Drone Law Handbook and Stern a director of law firm Legalese, which recently launched a new aviation department that caters for the drone industry.

Edited by Martin Zhuwakinyu
Creamer Media Senior Deputy Editor

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