Protection of possession of real estate against drones as a form of necessary defence is permissible only under exceptional circumstances.
A man in Kentucky became the darling of the media not long ago by shooting down a drone hovering over the yard of his house. Detained by the police, he claimed that every American has the right to defend his property and his rights, including the right to privacy. As the popularity of drones grows in Poland as well, it is worth thinking ahead about what measures are permissible against unmanned aerial vehicles flying over real estate.
When a drone trespasses
Under Art. 343 §1 of Poland’s Civil Code, a possessor of real estate may apply “necessary defence” to repel a trespass against his property. The possessor of real estate includes the owner, but also for example a tenant or usufructuary, or even a person who exerts actual control over the property without any legal basis. The Civil Code also permits a custodian—a person controlling real estate only on behalf of another person, e.g. a proxy, statutory representative, or someone entrusted with the property as a courtesy, as when a summer home is lent to friends—to apply necessary defence.
If someone else’s drone flies over your property, is that trespassing? Under Polish law, trespassing means a specific unlawful act that impedes or prevents the possessor from exercising control over real property. It’s hard to list all-encompassing examples, because what constitutes trespass will depend on factors such as the designated use of the property. It appears that in the case of real estate designated for recreational or residential use, frequent incursions by a drone at a relatively low altitude (“right over the heads” of the occupants) could be regarded as trespassing. But flights over the property at higher altitudes would probably be considered permissible, because the occupant’s control over the property does not cover all of the airspace over the property, but only the part of the airspace necessary for use of the property for its intended purpose. On the other hand, continuing observation of real estate from a drone hovering in the air could be regarded as trespassing regardless of the flight altitude.
Permissible means of defence
For the possessor of real estate to be permitted to use necessary defence, certain additional conditions must be met beyond the existence of a trespass. Firstly, as the name implies, necessary defence may be used only when it is essential to repel an attack threatening possession of the property. One might hazard to say that this situation would occur pretty rarely in the case of drones, because it might suffice to warn the operator of the drone or in extreme cases to alert the competent authorities.
The means of necessary defence employed must be commensurate with the threat. In the case of drones, this could be understood to mean that it is impermissible to damage or destroy the craft if the operator could be forced to cease the infringement in some other way, e.g. by giving a warning shot or employing devices interfering with the signals between the drone and the operator and thus forcing the operator to land the drone—although the latter approach might be impermissible under the provisions of the Telecommunications Law prohibiting the use of jamming devices (communiqué from the Office of Electronic Communications).
It should also be borne in mind that necessary defence may be employed to avert a violation, so it is permissible only at the time and place of the trespass (simultaneously). Damaging a craft that has already left the site (e.g. as it flies off) may be found to exceed the bounds of necessary defence (excessive force), and similarly when acting too far in advance, before the attack occurs.
We should briefly mention that the use of physical force against someone else’s drone may also be authorised under other provisions of the Civil Code. This might include for example a state of higher necessity or protection of individual rights (privacy) and the irreversible consequences of the infringement, e.g. when an individual is filmed by a drone controlled by an unidentifiable operator.
Penalty for damaging a drone
When defending against a drone, one should bear in mind that under Art. 124 §1 of the Petty Offences Code, damaging another person’s property or rendering it unfit for use is an offence punishable by arrest, probation or a fine if the loss does not exceed one-fourth of the minimum monthly wage (i.e. as of 2015 PLN 437.50). In the case of more valuable drones, such an act is a felony punishable by imprisonment of 3 months to 5 years, or in less serious cases probation or imprisonment up to 1 year (Penal Code Art. 288 §§ 1–2). Either of these offences is prosecuted only at the request of the injured party.
But as in the case of protection of possession, a person who damages or destroys a drone may assert that he has acted in necessary defence. Under the Penal Code, it is not a crime to act in necessary defence to repel an immediate and unlawful attack against any legally protected right. In certain circumstances, a state of higher necessary may also exclude criminal liability. Without discussing in detail the conditions for application of these two exceptions, it should be pointed out that privacy or ownership of real estate could qualify as a legally protected right. These defences also operate in the case of petty offences.
The analysis above is limited to trespass against real estate and obviously does not exhaust the topic (among other aspects, the issue of enforcement of rights before the courts is not addressed), but even under this limited analysis it appears that damaging or destroying a drone flying over one’s property is permissible only in exceptional circumstances. This is because there are many measures that could be pursued that are more commensurate to the threat, such as alerting the operator of the drone or calling the police, not to mention the growing market of solutions for combating drones (so long as their use is lawful).
Rafał Kuchta, New Technologies Practice, Wardyński & Partners
The article is a part of the New Technologies Newsletter, November 2015