Problems associated with the use of airline passenger blacklist in Latvia
Legal Administrative Manager
LLC (SIA) SmartLynx Airlines
"Jurista Vārds", 15.08.2017. / Nr. 34 (988)
Original publication in Latvian
With increased access to air transport services and the growing number of passengers carried by airlines, incidents caused by passengers that endanger the safety of the aircraft passengers are becoming increasingly common. The International Air Transport Association (hereinafter “IATA”) collected nearly 50 thousand reports from airlines concerning “unruly/disruptive passengers” between 2007 and 2015.[i] An “unruly passenger” is a passenger, who violates airport or transport regulations, or instructions given by the airport staff or cabin crew, thus disturbing the public order and discipline at an airport or on board of an aircraft.[ii]
Practically this means that such passengers may become physically or verbally aggressive, disrupt the public order, attempt to damage the aircraft or perform other actions prohibited on board, for example, smoking or using prohibited devices, or attempting to open an emergency exit. Press coverage on “unruly passengers” spotted on flights to and from Latvia has become more and more frequent. For example, in 2015, a video from a Riga–Dublin flight was published on the Internet featuring a half-naked passenger under influence hitting the airplane walls and trying to challenge other passengers. After a number of unsuccessful attempts to restrain the passenger, the pilot decided to make an emergency landing in Denmark, where the passenger concerned was transferred to local law enforcement authorities.
Not only do “unruly passengers” significantly compromise the safety of other passengers and the cabin crew, they may also cause financial losses and inconvenience both for other passengers and the air carrier, since the actions of “unruly passengers” frequently result in a need to divert the flight and perform an emergency landing. According to IATA, in 2015, 40% of airlines had diverted flights for unforeseen landing due to “unruly passengers”.
“Unruly passengers” can be held criminally liable for their actions, and may also be liable for damages under civil procedures. However, one of the most efficient preventive means for airlines to ensure the safety of passengers on board an aircraft in the future is to create a blacklist of “unruly passengers”, banning the blacklisted passengers from flights from the moment of blacklisting. There are several types of passenger blacklists depending on the operator and the reason for blacklisting. Some passenger blacklists are maintained by security authorities, and the persons listed therein are banned from air travel mainly on the basis of their potential links to terrorism.[iii] Then there are passenger blacklists created by individual airlines. Most frequently, passengers are included in such lists due to severe violations of an air carrier’s internal regulations and endangering the safety of passengers and the cabin crew on board. Taking into account the advantages of passenger blacklists, naturally, a question arises, whether air carriers registered in Latvia are entitled to create and maintain such lists.
Special legislation of the aviation industry in Latvia does not contain any provisions in respect of air carriers’ right to blacklist “unruly passengers”. Furthermore, it does not contain any other type of restrictions for air carriers, such as the prohibition to sell a ticket to a passenger to another flight in the case of previous violations that threaten flight safety, as is the case, for example, in Russia.[iv] In Latvia, the autonomy of companies in relation to the selection of clients is similarly not restricted by consumer protection legislation, unless a consumer is treated differently on the basis of gender, race, ethnic origin or disability.[v] From the viewpoint of personal data protection, if upon entry into a contract with an air carrier, a passenger gives his/her consent to blacklisting of such data with all that ensues, then the air carrier should not in fact be prevented from blacklisting the passenger’s data, if the passenger violates the carrier’s conditions of carriage.
However, there are certain issues related to the use of blacklists in Latvia. In accordance with the Personal Data Protection Law, a data subject has the right to obtain all information that has been collected concerning him- or herself in any personal data processing system.[vi] In fact, such a rule imposes a duty on the air carrier to provide information upon the passenger’s request, about whether or not the passenger concerned has been blacklisted. At the same time, the Personal Data Protection Law additionally grants to the data subject the right to request, inter alia, that his or her personal data be supplemented or corrected, as well as that their processing be discontinued or that the data be destroyed if the personal data are, for example, outdated or false.[vii] This legal provision raises several questions. First of all – are air carriers obliged to review the blacklists from time to time and update the information depending on the severity of the passenger’s violation? And secondly, how should an air carrier act, if a passenger requests removal of his/her name from the list because he/she believes that no violation has been committed?
Although, in cases like this, the Personal Data Protection Law imposes the burden of proof regarding the accuracy and fairness of information on the data subject,[viii] it is not clear, whether such a legal requirement actually imposes the duty of storage of the information concerning the passenger’s violation which has led to the blacklisting on the operator. For example, air carriers in the USA frequently store documentary evidence on reasons for blacklisting.[ix] Supposedly, blacklist operators in Latvia should also store information concerning passengers’ violations to be able to substantiate the reasons for blacklisting.
The above raises a question, whether an air carrier is really free to determine the violations, which may lead to the blacklisting of a passenger. Since the current legislation is deficient, it is believed that there are no hindrances for air carriers to determine freely the types of violations in their conditions of carriage. Air carriers in the USA also frequently include specific reasons in their conditions of carriage, which may be used as a basis for the blacklisting of passengers.[x]
Furthermore, a question arises, what kind of evidence may be considered sufficient to recognize that a passenger’s actions are in conflict with the conditions of carriage. In terms of evidence, special aviation laws and regulations assigning to the aircraft’s pilot-in-command full authority during the flight should be taken into account.[xi] Therefore, the information included in the report of a pilot-in-command on the actions of a passenger should be considered a sufficient reason for the blacklisting of the passenger.
Additionally, air carriers operating charter flights may face an accuracy problem when identifying blacklisted passengers. Operators of charter flights, i.e. irregular commercial passenger flights, operate on the basis of contracts concluded with tour operators, and, contrary to regular carriers, they do not usually perform the sale of flight tickets. Therefore, passenger data received by these operators is very limited. This may lead to a situation where a passenger having the same name and surname as some “unruly passenger” is denied boarding based on a blacklist.
Passenger safety is one of the most important objectives of air carriers, and a blacklist may prove to be an efficient tool in the hands of such air carriers who wish to guarantee safe air travel. For safety reasons, an optimum balance should be sought between the right of airlines to ensure maximum safety on board and the protection of passengers’ personal data. If air carriers had an opportunity to properly introduce internal blacklists, this would facilitate industry guidelines significantly.
[i] See IATA Fact Sheet Unruly Passengers https://www.iata.org/pressroom/facts_figures/fact_sheets/Documents/fact-sheet-unruly-passengers.pdf
[ii] ICAO Annex 17 to the Convention on International Civil Aviation 1944 (the Chicago Convention)
[iii] For example, in the USA, such a list (No Fly List) is maintained by the Terrorist Screening Centre operating under the Federal Investigation Bureau.
[iv] See http://www.eturbonews.com/29326/russian-aeroflot-wants-blacklist-passengers-bad-behavior In accordance with the Russian Air Law, airlines are entitled to unilaterally terminate passenger or freight contracts, but may not refuse the sale of a ticket. Practically this means that the airline may refuse to issue a return ticket to a passenger who has violated the rules of flight safety during the previous flight segment, but it may not refuse to sell a fresh ticket for another flight.
[v] Section 31 of the Consumer Rights Protection Law
[vi] See Section 15, Paragraph 1, of the Consumer Rights Protection Law
[vii] See Section 16, Paragraph 1, of the Consumer Rights Protection Law
[viii] See Section 16, Paragraph 1, of the Consumer Rights Protection Law
[ix] See J. A. Silversmith. Legal Responses to Airline Passenger Misconduct https://www.zsrlaw.com/wp-content/uploads/sites/378/2016/04/Aviation_-_Silversmith_-_Legal_Responses_to_Airline_Passenger_Misconduct_2011.pdf
[x] See J. A. Silversmith. Legal Responses to Airline Passenger Misconduct https://www.zsrlaw.com/wp-content/uploads/sites/378/2016/04/Aviation_-_Silversmith_-_Legal_Responses_to_Airline_Passenger_Misconduct_2011.pdf
[xi] Section 38, Paragraph 1, Clause 4, of the Law On Aviation provides that the pilot-in-command has the exclusive right in the interests of aircraft flight safety within his or her competence to give instructions to any person in the aircraft, which shall be mandatory to follow, and to apply all necessary means in order to suspend the action of any person who obviously endangers aircraft flight safety, and after the landing of the aircraft to transfer such a person to competent authorities, as well as to request the assistance of passengers to ensure that the person referred to in this Paragraph follows the instructions given to him or her.