The Dutch Journalism Association NVJ (Nederlandse Vereniging van Journalisten) is preparing a case against its government, on behalf of drone journalists.
Media Lawyer Otto Volgenant, acting for the NVJ, claims the Netherlands is violating the European laws on press freedom: Dutch drone journalists have more news gathering restrictions than regular citizen, and that is a form of censorship.
The fault in our law
From the window of his Amsterdam office on Leidsegracht, he looks down on the canal, with across it an oddly popular bench. Tourists, young couples mainly, sit down on it. They take pictures, kiss, read books – real books, or nonchalantly write on the seating. The bench is a prop from the 2014 movie The Fault in Our stars. And here, on the Leidsegracht, the two main characters had a plot-twisting romantic encounter. A natural crowd magnet. ‘We should put a webcam on it, and make some money selling advertising space,’ comments Volgenant grinning.
Filming in public space with a fixed camera, for example from an office windowsill, is prohibited in the Netherlands. And the footage is not allowed to be published. Of course, Volgenant knows this. As media lawyer at Boekx Advocaten he fought numerous battles in national and European courtrooms on behalf of the media. Privacy and copyrights are his specialities. Hence the grin. He also knows that Dutch law does permit filming in the public sphere with a handheld camera… or a camera attached to a drone. With one peculiar exception. Commercial drone flights are forbidden.
In the Netherlands, the professional use of drones is prohibited by law. An exemption is possible if the drone operator meets a complex list of demands that in the past only applied to professional pilots. These demands include that a commercial flight needs to be reported to five different government organisations, starting weeks before the actual flight date.
Unworkable demands for journalists
For journalists, these demands are unworkable, concludes Volgenant. ‘The regulations are too restricted. You need an expensive licence, go through a complex test program, arrange for insurances, and ask six weeks prior to the intended flight date for official permission to take off. For every single flight. Especially that is unfeasible. Breaking news doesn’t wait. Journalists need a drone to report news in hard to gain access to areas. For example, if there is a dike breach or a fire in a harbour.’
Or a demonstration? Volgenant: ‘For now, we try to stay away from the application of drones during, for example, a demonstration on the Amsterdam Dam. Aside from the apt remark that this can be dangerous above crowds, we first want to point out these regulations must be made workable for journalists.’
During demonstrations, the drone is an ideal reporting tool. Bangkok protests against the Thai government, January 2013.
In February 2014 Volgenant, on behalf of the NVJ and the NVF Dutch Photo journalists Association), wrote a letter to the Dutch ministry of Infrastructure and Environment. In this, he suggested changing the law in such a way that drone journalists can respond to the news adequately, without the duty to report the flight first. He further suggested that the Dutch government should allow journalists to keep a horizontal distance of 50 meters from objects and crowds, instead of the 150 meters other civil drone pilots need to keep to. ‘All drone journalists we have spoken to, say that 50 meters is sufficient for their job, while it is a safe distance.’
The real problem, according to Volgenant, is the legal distinction between the professional and the hobby drone pilot. ‘That is what makes this such an abnormality. The boy next door can buy his drone from the toy store and fly right away, while a professional with the same toy cannot. Mind you, we are talking about a fundamental principle here. The intention of this law cannot be to allow journalists to have less freedom than any other citizen. It should rather be so that a journalist is allowed to have more freedom in this area than other civilians. A drone reporter should be given priority over others, when it comes to news gathering. Just like Dutch journalists use press cards, allowing them entry into a secured area, drone journalists should be able to get some kind of exemption1.’
The lawyer thinks a drone equivalent to a drivers licence test could improve the rules fairly easy. ‘A drone journalists should be able to get a flight license, proving he knows the air traffic rules. Such a licence should cost more or less the same.’
Since the letter, Volgenant and the NVJ repeatedly had contact with the Dutch Ministry of Infrastructure and Environment. According to the NVJ, State Secretary Wilma Mansveld voiced her acknowledgement that the situation is unworkable for journalists.But when she proposed a new drone bill in November 2014, not a word was mentioned about the press freedom or the position of the journalists. To avoid a test cast, Volgenant wrote another letter. But January 2015 was the limit. State Secretary Mansveld had to answer questions to the Dutch Lower House, about the use of drones by hobbyists and professionals, but according to Volgenant, she once again brushed aside press freedom and the position of journalists.
That was enough reason to start preparing the case against the state. Volgenant: ‘Because no matter what, there must be space for drone journalists to fly. I am convinced journalists have a better story than other commercial drone owners. They have the freedom of the press, backing them. Journalists have the duty to be at the front, when a catastrophic event occurs. They must serve the public cause by reporting the news. Other drone owners don’t have that argument.’ Volgenant refers to the European Convention on Human Rights (ECHR, 1950) stating that article 10 implies press freedom restrictions are only allowed in case of urgency.
‘Drone journalists are criminalised now’
NVJ-secretary Rosa García López adds that the journalism association is in a hurry to solve the problem: ‘The press freedom is at stake. At the moment photo journalists are prosecuted because of ‘illegal drone flights’, thus criminalising them and burdening them with a criminal record. Whereas they just are doing their job as journalists.’
The NVJ does however support drone regulation. Volgenant: ‘You don’t want fly-by-nights dragging the name of professional drone journalists through the mire, because they use the devices in a dangerous way. Our present proposal is particularly in the interest of journalists using bigger and more expensive drones – devices of ten thousand euros and over. On behalf of those journalists we say: rules are necessary, but it must be workable.’
Deregulation of smaller drones
That means the NVJ only represents a part of the drone journalists. According to drone expert David Goldberg of the Glasgow Caledonian University, drone journalists, even at the bigger news organisations, are especially interested in the lighter drones. Volgenant: ‘Maybe regulation should not apply to drones under two kilograms at all. But the government has a tense way of dealing with the situation. Their rigid reasoning is: If it goes up, no doubt it can crash. Yes, my personal drone can crash too, but there is no way I can kill someone with that, and it doesn’t cause tons of harm if it crashes. How smaller, how cheaper, and how slighter the damage. Of course, regulation is much easier when the devices become safer, and I must admit, in my personal experience it is quite hard to operate the thing. It still flies all over the place.’
Ministry’s response: ‘Press freedom not part of our responsibilities’
State Secretary Wilma Mansveld of the Ministry of Infrastructure and Environment declared to Dutch News Design that Press freedom isn’t part of her ministry’s responsibilities. However: ‘The regulations are aiming for general operations, there will be no specific demands for drone reporters. Given the nature of the operations of a drone reporter, it is quite possible that they will be explicitly confronted with the legal boundaries, in the first phase of the regulations.’
In Belgium, the Dutch speaking neighbour of the Netherlands, the government is working on a commercial drone licence that can be obtained for about 1900 euros. You can find more about drone legislation from country to country here, and here.
- Drone professor Matt Waite strongly disagrees with this. Read the interview with Dutch News Design here