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Flying into trouble

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When an irate home owner in Kentucky saw a drone flying over his back garden he went inside, loaded his shotgun and blasted it from the sky.

He was arrested – not for shooting down the flying video cam but for using a firearm within the city limits.

Only in America.

But with developers increasingly using aerial footage to market sites what are the rules on drone filming in the UK?

This is just one of the areas where the law is struggling to keep up with technology. In July last year the Government introduced measures to ensure all drones over 250 grammes have to be registered and their owners sit a safety awareness test.

And anyone flying a drone for profit has to be licensed by the Civil Aviation Authority and pass a flying competency exam.

But exactly where they can fly, what they can film and where that footage can be shown is an evolving area. While using aerial footage to survey buildings and review development sites is simple and effective things become a lot more complicated if you want to film completed schemes where people are living.

If you could see anyone or identify them in the video the new rules of GDPR would apply and steps would need to be taken to edit out or blur images so that the person would not be identifiable either through their appearance, address or some other factor.

Capturing the material in the first place and then editing it would also have GDPR implications – this would be in the form of ‘processing’ under the GDPR, even if the new data was never published – as there would be an obvious risk of recording individuals potentially doing “private” things.

This would be allowed if the developer could establish a lawful basis – in this case either consent or a legitimate interest could work:

Consent

Thinking to the future you could ask for consent at the point of sale of the property however this consent can be revoked at any time and I am unsure the courts would view it as “freely given” consent if a person felt they were being pressured to give it when buying such an important asset as a house.

In an ideal world it would be better to get consent after the sale but before filming begins.

Legitimate interest

Developers could try arguing that filming a completed development is in their legitimate interests for the purpose of showing previous work. However, they would be at risk of this being outweighed by the rights of the individual to not be recorded in their own home.

If a developer wanted to rely on a legitimate interest they would definitely need to undertake a Privacy Impact Assessment and look at ways to reduce the risks to an individuals’ privacy – so perhaps filming at a time when people are unlikely to be home, knocking on doors to see if people are in would all help to make the filming less risky.

There are also general GDPR obligations to comply with relating to how the video is stored, kept confidential, where it is stored etc. that have to be complied with, being aware of the rights of any data subjects that you film.

So while aerial video set to soaring music can be an inspirational way to sell a development developers will do well to take the right advice before taking to the skies.

If you require advice on any aspect of property marketing law or GDPR, please contact me on 0161 672 1417 or email richard.riley@slaterheelis.co.uk

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