The right to vanish: what privacy rights do superyacht owners have?

Today, modern superyachts glide across the oceans leaving an invisible digital trail. Every movement, every anchorage, every discreet arrival is vacuumed up, republished, and monetised by online automatic identification system (AIS) tracking platforms. And some owners don’t like this.

Some owners pull the plug; however that’s not lawful and there may be insurance repercussions if switching off were to be a contributory factor in a collision. So, that aside, what rights do owners have to vanish?

USEFUL KIT

All yachts of 300 gross tonnage or more and engaged on international voyages must be fitted with Class A AIS equipment (per Regulation 19 of Chapter V of SOLAS). It enhances safety and security. By broadcasting key information through short-range radio signals to nearby vessels, it supplements the picture produced by radar, so enhancing traffic awareness.

There’s a comforting assumption that if something is broadcast, it’s public and anyone is entitled to hoover this information up, then post online and monetise it. But AIS’s core purpose is nearby safety, not global tracking.

ENTER GDPR

The General Data Protection Regulation (GDPR) is a comprehensive data protection law enacted by the EU to safeguard personal data. The UK’s own version of GDPR was retained in domestic law post-Brexit by virtue of the Data Protection Act 2018.

Data in respect of an individual’s location is undoubtedly personal data (per Article 4(1)). AIS data can become personal data when there’s a sufficient link to a habitual individual user, or even a crewmember, because of, for example, credible media reports. It becomes pattern-of-life information which can be used to map the movements of individuals.

LAWFUL BASIS

Under Article 6 of UK GDPR, every single act of processing personal data (such as posting online) must have a lawful basis. There are six lawful bases under Article 6(1):

1. Consent: has the owner consented to having their real-time location posted and published?
2. Contract: is there a contract?
3. Legal obligation: is there a law requiring the publishing of a private individual’s real-time location?
4. Vital interests: is publication necessary to save a life?
5. Public task: is the person posting this data a public authority exercising a public function?
6. Legitimate interest: is publication necessary for legitimate interests of the publisher or a third party? Maritime safety? No, as the vessel is already broadcasting AIS for that purpose, therefore reposting online adds nothing.

FURTHER HURDLES

Even if a lawful basis were somehow established, the processing would still need to comply with the data protection principles in Article 5 of UK GDPR, including lawfulness, fairness, and transparency. Further, data should not be kept longer than necessary, and if an archive of historical movements is being maintained, this requires separate justification.

MISUSE OF PRIVATE INFORMATION

The misuse of private information is also a distinct civil wrong, liability for which is determined on the basis of whether the claimant has an objective, reasonable expectation of privacy in respect of the data. Clearly, any yacht owner has just such an expectation. The victim doesn’t have to rely on data protection law at all: they can go straight to court on the grounds that their reasonable expectation of privacy has been violated, with claimants receiving damages for the loss or diminution of the right to control their private information, independently of any distress caused.

CELEBRITY PRIVACY

To what extent does placing oneself in the public spotlight erode the right to privacy? In Campbell v MGN, supermodel Naomi Campbell successfully sued the Daily Mirror for publishing details of her treatment at a clinic. The court established that being a public figure means you must tolerate some additional scrutiny but that does not extend to unlimited surveillance of your private movements and personal life.

In the subsequent case of Murray v Big Pictures, author JK Rowling was photographed out walking with her infant son, and those images were published in the Sunday Express. The court held that the son had a reasonable expectation of privacy even when out and about in a public place. Here, the targeted surveillance of the son beforehand mattered enormously. AIS data which can be used to track an individual’s real-time location is precisely this sort of targeted surveillance.

UNLAWFUL INTERCEPTION

Finally, there is also an overlooked technical issue lurking beneath the surface: interception law. In the United Kingdom, it is an imprisonable criminal offence, under section 48 of the Wireless Telegraphy Act 2006, to intercept, without lawful authority, a communication during its transmission by means of a public telecommunication system, including VHF radio signals produced by AIS equipment.

AIS was built for safety, not surveillance. The lesson for superyacht owners isn’t to go dark –it’s to consider whether the publication of such data online, to the world at large, is lawful.

If you are concerned about the publication of AIS data or online vessel tracking, please contact Benjamin Maltby.