Drones and Criminal Law: Espionage, Damages, and Air Safety

Recreational and professional drone use has skyrocketed, but many pilots are unaware that they are operating aircraft subject to strict regulation. Recklessness can end up in criminal court.

The same flight can generate consequences on three different fronts: an administrative file with heavy fines, a civil claim for the damage caused, and criminal proceedings where privacy or the safety of people is compromised. Knowing which front you are on — and which one really threatens you — is the first step of any defence.

The Eye in the Sky: Crimes Against Privacy

Recording the interior of a home or a private pool from the air without consent is a crime of discovery and revelation of secrets (Art. 197 CP), punishable by 1 to 4 years in prison. It is not necessary to disseminate the images; mere capturing consummates the crime.

The key is the victim's reasonable expectation of privacy: a home, its garden or a private pool are protected spaces even when they are visible from the air. The fact that the flight itself was authorised does not legitimise the recording, and deleting the images afterwards does not undo the offence. Disseminating the images to third parties makes the situation considerably worse.

Danger to Air Navigation

Flying near airports (CTR) or over crowds of people without authorization can constitute a crime against air safety. If the drone impacts a person, the pilot responds for injury by gross negligence.

What turns an administrative infraction into a criminal matter is the creation of a specific, serious danger: flying over a crowd, interfering with manned aviation or losing control of the aircraft in circumstances where an elementary duty of care was ignored. The more elementary the precaution breached, the closer the conduct moves to gross negligence — and, with it, to criminal liability for any injuries caused.

Administrative Fine or Criminal Court?

Most drone incidents are resolved through administrative proceedings and AESA fines: flying without authorisation, in restricted areas or without the required qualifications. The criminal route is reserved for the most serious conduct — deliberate invasions of privacy, the creation of real danger to people or to air navigation, and injuries caused by gross negligence. Where both routes are opened for the same facts, the criminal proceedings take precedence and the defence must ensure that the same conduct is not punished twice.

Defence Strategies

• Identification of the pilot: the prosecution must prove who was operating the drone at the relevant moment, which is far from straightforward.
• Flight records: telemetry and flight logs can show altitude, route and camera orientation, ruling out the deliberate capture of private spaces.
• Absence of intent: an incidental, fleeting capture while filming landscapes is not the same as hovering over a neighbour's pool.
• No specific danger: in air-safety cases, showing that no real risk to people or aircraft was ever created.