How to Make Your Yacht Disappear

Benjamin Maltby, lawyer and General Secretary of The Owners Club, provides practical guidance on owners’ rights not to be tracked. Owners can use this guidance to avoid AIS tracking.

Today, modern superyachts glide across the oceans leaving an invisible digital trail. AIS tracking platforms vacuum up every movement, every anchorage and every discreet arrival. They republish the data and monetise it. Many owners don’t like this.

Some owners pull the plug. However, that isn’t lawful. There may be insurance repercussions if turning off is 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 on international voyages must be fitted with Class A AIS equipment. This is 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 radar. This enhances 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 EU enacts the General Data Protection Regulation (GDPR) as a comprehensive data protection law 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 crew member, because of, for example, credible media reports. Pattern-of-life information emerges and can be used to map individuals’ movements.

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 posting and publishing their real-time location?
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 we can establish a lawful basis, we must ensure the processing complies with the data protection principles in Article 5 of the UK GDPR, including lawfulness, fairness and transparency. We should not keep data longer than necessary. If we maintain an archive of historical movements, we will need separate justification.

MISUSE OF PRIVATE INFORMATION

The court determines liability for the misuse of private information based on the claimant’s privacy expectation. Clearly, any yacht owner has just such an expectation. Someone has violated their privacy expectation, so they may go to court, with claimants receiving damages for loss of control over their information.

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.

Photographers photographed JK Rowling as she walked with her infant son, and the Sunday Express published those images. 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. This AIS data enables tracking an individual’s real-time location, making it a clear example 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.

Developers built AIS 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 – gensec@theownersclub.org