(May 1, 2015) On April 13, 2015, the Administrative District Court of Malmö announced that using a drone to take pictures of an outdoor public garden is not camera surveillance that requires a prior permit. (Jaqueline Balcer Bednarska, Foto med drönare är inte kameraövervakning – domstol upphäver länsstyrelsens beslut, DAGENS JURIDIK (Apr. 14, 2015).)
The decision was rendered on an appeal of a County Administrative Board decision that had denied a corporation the camera surveillance permit the Board considered to be a requirement for filming public gardens for commercial purposes. The Board had found that because the photography was of a public garden and citizens are free to visit the garden, the citizens’ interest of privacy outweighs the corporation’s interest in using the camera surveillance. (Id.)
The Camera Surveillance Act prohibits the placement of a surveillance camera in a public place in Sweden without a prior permit. (Kameraövervakningslag [Camera Surveillance Act], SVENSK FÖRFATTNINGSSAMLING 2013:460, art. 3 item 1, NOTISUM, emphasis by author.) To be granted a permit the user must have a legitimate purpose that outweighs the privacy interest. (Id. art. 9, ¶ 1.)
The Administrative District Court found that the intent of the user is immaterial, that is, usage can be deemed camera surveillance even if surveillance was not the intent. But the court decided that the use of a drone to photograph a public garden was not covered by the law. The court ruled that because the drone was not a permanent fixture, the law did not apply. The court found that the law presumed that there is some permanence to the use of the camera; cameras that are just briefly used are not covered. The court relied on legislative history, which, for instance, considered the use of cameras during protests to be permissible. The court noted that because drones only have a limited battery life and thus need to be taken down to replace the batteries, their use does not create a state of permanence. (Administrative District Court of Malmö, Case No. 1323-15 (Apr. 13, 2015), on file with author.)
The decision should not be seen as a blank check to use drones to take photographs in public places, however. The Chief Judge reportedly later emphasized that using drones for photographic purposes could still violate other laws, such as those on assault or sexual assault, under certain circumstances. (DAGENS JURIDIK, supra.)