PIPEDA In The Sky: What Commercial Drone Operators Need To Be Aware Of

It is estimated, based on 2015 statistics, that the market value of global commercial drone use exceeds $127 billion. With growing demand for higher quality data through drone usage, there is an increasing probability that confidential or personal information will be collected. Drones can present a total invasion of privacy if operators gather personal data or film individuals. The most common occurrence would be filming unsuspecting individuals carrying out their daily lives as the drone flies overhead. Consequently, drone operators need to be cognisant of all ancillary data and personal information that is collected. Operators must also ensure that they abide by privacy legislation.

Both the Office of the Privacy Commissioner and the Information and Privacy Commissioner of Ontario have concluded that the Personal Information Protection and Electronic Documents Act ("PIPEDA") would apply to regulate information collected in the use or operation of commercial drones.

The purpose of PIPEDA is to establish, in an era which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information. Not surprisingly, the term "personal information" has been given a very broad definition, and includes "information about an identifiable individual."2 Arguably, much of what is collected by drone operators would satisfy this definition.

PIPEDA regulates how private sector organizations collect, use and disclose personal information in the course of commercial business.3 Commercial drone operators need to be mindful of this legislation given how drone surveillance has the ability to collect extensive amounts of data about an individual. Data collected in the process of conducting surveillance, obtaining photographs or taking videos may trigger PIPEDA provisions. Operators working for real estate firms, research agencies, oil and gas companies, excavation companies or any other institution that requires the drone operator to gather information and media content in public settings may be subject to this legislation.

A key factor in invoking the PIPEDA provisions is whether the information collected about an individual makes it possible to identify that particular individual. In Gordon v Canada (Health), it was held that the threshold to be considered "identifiable information" is whether there is a serious possibility that the information permits or leads to the...