Drones, the crewless mini aircraft flown by remote control and radio frequencies, are becoming increasingly popular amongst technology lovers throughout the world, including Indonesia. Equipped with high resolution cameras that can take and save pictures in real time, drones are often used for making films, air photography and even mapping. With an increasing number of drones on the market, the public needs to understand the legal provisions on the use of drones in order not to breach the public or state law in the Republic of Indonesia which governs airspace.
Specific Legal Provisions about Drones
The use of drones is specifically governed by Regulation of the Minister of Transport of the Republic of Indonesia No. PM 90 of 2015 concerning Controls on the Operation of Crewless Aircraft in Airspace Served by Indonesia ("PM 90"). PM 90 explains in which areas drones cannot be used.
The zones and airspace where drones cannot be operated are listed below.
- Prohibited areas, i.e., certain areas of airspace over land and/or waters with permanent restrictions which comprehensively apply to all aircraft.
- Restricted areas, i.e., specified airspace over land and/or waters with non permanent restrictions which can only be used for state aviation and when these zones are not being used or not active, they can be used for civil aviation.
- Airport aviation operations safety zones (KKOP), i.e., land and/or waters and the airspace round airports which are used for aviation operations to ensure aviation safety.
- Controlled airspace, i.e., airspace given to aviation traffic services in the form of air traffic control services, flight information services, and alerting services.
Uncontrolled airspace at a height of more than 500 ft (150 m), i.e., airspace to which are given aviation traffic services in the form of flight information services, alerting services, and air traffic advisory services.
In special conditions, drones may be operated at heights greater than 150 m (500 ft) with a licence from the Director General of Aviation, i.e., in the government's interest, such as State border patrols, State marine territory patrols, weather monitoring, monitoring of animal activities and vegetation in national parks, surveys and mapping.
PM 90 has separate provisions for drones with cameras:
- Drones with cameras are prohibited from operating within 500 m from the outer boundary of a prohibited area or restricted area.
- If a drone is used for the purposes of photography, filming or mapping, the operator should have with them a licence from the authorized institution and the Local Government. "Local Government" here means the governor, regent or mayor and local officials as the element administering local government.
The criminal provisions for a breach of the provisions in PM 90 are stated in the Aviation Act Articles 410 to 443, one of which, 411, says: "Every person who intentionally flies or operates an aircraft and endangers the safety of aircraft, passengers and goods and/or the population or damages property belonging to others as contemplated in Article 53 shall be liable to a maximum prison sentence of 2 (two) years and a maximum fine of Rp. 500,000,000 (five hundred million Rupiah)."
It should be explained that the above regulations do not cover all of the implications of the use of drones case by case, such as if drones cause damage to another party's property or goods. This could also be referred to provisions in the Criminal Code.
Use of Certain Radio Frequencies
Drones are usually flown by remote control or radio frequencies. Drone operation is therefore subject to the Telecommunications Act Law No. 36 of 1999 (the "Telecommunications Act"). Article 33 (1) of the Telecommunications Act provides that the use of radio and satellite frequencies must have a government licence and must be in accordance with the frequency allocation and not disrupt others' use of frequencies.
Further provisions can be found in Regulation of the Minister of Communications and Information Technology of the Republic of Indonesia No. 4 of 2015 concerning Operational Provisions and Licensing Procedures for the Use of the Radio Frequency Spectrum ("Permenkominfo 4/2015"). Permenkominfo 4/2015 provides that any use of radio frequencies must be pursuant to a radio frequency use licence and must not disrupt others' use of frequencies. The allocation of radio frequencies is determined in a table of Indonesian radio frequency allocations.
Under the Telecommunications Act and Permenkominfo 4/2015, a breach by use of radio frequencies without a licence or use which is not in accordance with the allocated use, or which disturbs other parties may attract a maximum prison sentence of 4 (four) years or a maximum fine of Rp. 400,000,000 (four hundred million Rupiah). If the breach results in the death of a person, the sentence could be 15 (fifteen) years' imprisonment.
Taking Pictures by Cameras
Drones are equipped with high-res cameras and therefore you should be aware of the provisions on taking pictures by cameras. These provisions regulate the taking of pictures of persons and things separately. For pictures of persons we refer to the Copyright Act Law No. 28 of 2014 ("UUHC"), in particular Articles 12 to 15, which govern the economic rights to photographic portraits.
Article 12 paragraphs (1) and (2) of UUHC says:
- Every person is prohibited from making commercial use of, duplicating, publishing, distributing and/or communicating a photograph of a person made for the purpose of commercial advertising or billboards without the written consent of the person portrayed or his/her heirs.
- Commercial use, duplication, publication, distribution, and/or communication of a photograph of a person contemplated in paragraph (1) which contains the images of 2 (two) or more persons must have the consent of the persons in the photograph or their heirs.
A breach of Article 12 UUHC is liable to a maximum penalty of Rp.500,000,000 (five hundred million Rupiah). However, Article 12 UUHC does have the following exceptions:
- for the purposes of security, the public interest, and/or the needs of criminal proceedings, the authorized agencies may publish, distribute or communicate photographs of a person without having to obtain the approval of the person or persons in the photograph.
- Unless contracted otherwise, the owner and/or holder of copyright in a photograph (including the photograph of a person) is entitled to publish the work in a public exhibition or to duplicate it in a catalog produced for the purposes of an exhibition without the consent of the creator in so far as it does not conflict with Article 12 (a commercial purpose and the number of persons in the photograph).
Given the above regulations, it is easy to understand that if a person publishes a photograph of a person without any commercial purpose, they are not punishable under UUHC.
Other Provisions related to Drones
With reference to Regulation of the Minister of Communications and Information Technology of the Republic of Indonesia No. 18 of 2014 concerning Certification of Telecommunications Devices and Equipment ("PM 18"), a drone may be considered to be a Telecommunications Device or Piece of Equipment.
Article 1 items 1, 2, and 3 of PM 18 say:
- "Telecommunications" means any transmitting, sending and/or receiving of any information in the form of signs, signals, writing, pictures, sound, and voice through a system of wires, optical fibres, radio, or other electromagnetic system.
- "Telecommunications Device" means any device used in telecommunications.
- "Telecommunications Equipment" means a group of telecommunications devices which make telecommunications possible.
Because a drone is included in telecommunications devices, we must refer to Article 32 of the Telecommunications Act together with Articles 71 to 77 of Government Regulation No. 52 of 2000 concerning the Administration of Telecommunications together with Article 2 of PM 18.
These Regulations specifically provide that any telecommunications devices or equipment made, assembled, imported for trade, and/or used in the territory of the Republic of Indonesia must meet technical requirements. Verification of compliance with such technical requirements can be done through certification of the telecommunications tools and equipment and/or post market surveillance.
Article 52 of the Telecommunications Act also governs breaches where there is no certification of telecommunications devices and equipment, i.e., anyone who trades, makes, assembles, imports or uses telecommunications equipment in the territory of the Republic of Indonesia which is not in accordance with the technical requirements contemplated in Article 32 (1) will be sentence to a maximum term of imprisonment of 1 (one) year and/or a maximum fine of Rp. 100,000,000 (one hundred million Rupiah).
Following the progress in the field, the Indonesian Government will be issuing a regulation regarding Unmanned Aircraft Systems (“UAV”), another name for drones, in the form of Civil Aviation Safety Regulation (CASR) Part 107. The Government's plan was mentioned in the Seminar held by Directorate General of Civil Aviation of the Ministry of Transportation Republic of Indonesia and Indonesian Air Law Society (Masyarakat Hukum Udara or MHU), on September 17, 2015, in Jakarta. CASR Part 107 will provide that, among others: (i) UAV must not fly over persons other than the UAV operator, (ii) the UAV must only fly in daylight, (iii) the UAV operator must not fly the UAV from aircraft, (iv) the UAV operator must not fly the UAV from a movable carrier, except for a carrier that moves on water, and (v) the UAV operator must not operate more than one UAV at the same time.
The UAV must have an Airworthiness Certificate as regulated in CASR part 21, Experimental Certificates (section 21.191, 21.193, 21.195) and Special Flight Permits (section 21.197, and section 21.199). Other CASR which relate to UAV are CASR part 61 (regarding pilot licenses), 91 (regarding aspects related to UAV operation), 45 (regarding identification and registration mark of UAV), 47 (process to register UAV), and 67 (medical standards and certification, for class 2 or higher aircraft).
In conclusion, according to the regulation, anyone who operates a UAV must have a certificate and meet all the requirements under the regulation. The operator will also be able to operate the UAV only in certain areas as mentioned in the regulation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.