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The use of drones is increasing on construction sites - but contractors should be careful when deploying them, particularly when using them to monitor progress on sites.
Increasingly, construction companies are using unmanned aerial vehicles (UAVs), or ‘drones’ as they are colloquially known, for a variety of purposes including conducting aerial surveys and monitoring the activities of staff and subcontractors on the worksite, in particular their compliance with health and safety policies.
While the commercial benefits of using drones on the construction site are not in dispute, their use has a high potential for infringing the privacy rights of individuals whose images are captured by the technology.
Under data protection law, individuals must be informed of how their personal data (i.e. their image) is being processed. Covert ‘spying’ on employees or subcontractors would, therefore, be completely unlawful.
While it may be easy to inform employees and subcontractors that drones are in use, a major issue is that on many occasions where the drone is operating from a high vantage point, individuals unconnected with the building site are unlikely to realise that they are being recorded.
It is therefore important to come up with creative ways of providing individuals with notice that the drone is in use and how their images may be used and disclosed.
The UK data protection authority (DPA) - the Information Commissioner’s Office - suggests that this could involve wearing highly visible clothing identifying yourself as the UAV operator or placing signage in the vicinity of the area in which you are operating the drone.
Informing individuals of how you are using drones is only one part of the puzzle. Companies must also have a legal ground under data protection law to use drones and this is the trickiest part.
There are two common legal grounds that companies tend to rely on: firstly, the consent of the individual; and secondly, legitimate business interests. However, in most circumstances it will be impossible to obtain valid consent of employees as consent must be ‘freely given’ which is viewed as impossible in the employment context.
Companies cannot argue that the use of drones is in their ‘legitimate business interest’ if it prejudices the rights and freedoms or legitimate interests of the affected individuals – something which is very likely if drones are used without having due regard to privacy concerns.
What then can construction companies do to reduce the risks of privacy intrusion so that their use of drones will not be unlawful?
It is also important to note that the use of drones may also trigger the obligation to notify local data protection authorities. In a number of European countries it may also be necessary to obtain approvals from the local DPAs which can be a time-consuming and complicated exercise.
There may also be serious employment law consequences of introducing drones on to the building site. It may well constitute a change in the terms of employment which may require explicit consent of the staff and potentially consultation with or approval from works councils or trade unions.
Finally, Charles Russell Speechlys recently engaged YouGov to carry out new research which reveals the extent to which drones are taking off in business, despite poor knowledge of the rules surrounding their use. The research found:
This article was written by Robert Bond
For further information, please contact Robert Bond on +44 (0)20 7427 6660 or email@example.com