New satellite regulation

A growing trend within electronic communication is the use of satellite communications systems, particularly the use of so-called low earth orbit satellites systems (a "LEO system"). SpaceX is already offering broadband in Norway using a LEO system. In our previous newsletter, we examined the current and expected Act on the launching of objects from Norwegian territory and more into space (the "Revised Space Act"). The Proposal signals that the revised Act on Electronic Communications ("Revised Ecom Act") will also govern the use of satellites.

Norway's international liability 

The Proposal sets out that, to the extent that Norway, in accordance with international agreements, has paid compensation for damage caused by space objects, the ministry may seek recourse from the responsible entity. International agreements on the matter include the Treaty on Principles Governing the Activities of States in the Exploration and use of Outer Space (the "Outer Space Treaty") and the Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention"), both of which are signed and ratified by Norway. This is a continuation of the current law based on the Act on Electronic Communications (the "Ecom Act"). 

In short, the Norwegian state may become liable when acting as a "launching state" which it is when Norway launches or procures the launching of a space object or when a space object is launched from Norwegian territory or a Norwegian facility. A relevant example is if a satellite is launched from Andøya Spaceport. 

When acting as a launching state, Norway may become internationally liable for damage to another State party of the Outer Space Treaty or to its natural or judicial persons by such object or its component parts on the Earth, in air or in outer space. The Liability Convention further elaborates that Norway will become liable to pay compensation for damage caused by its space objects on the surface of the earth or to aircraft in flight when acting as a launching state. An exception from the strict liability to pay compensation is when the damage has resulted from gross negligence or from an act or omission done with intent to cause damage on the part of the claimant State or of natural or juridical persons it represents if Norway has acted within the boundaries of international laws. 

Proposal's regulation of reimbursement liability

Since the Proposal suggests continuing the current state of law it is still vital to be aware of who is defined as the "responsible entity" when participating in a launching project because it is this entity that risks receiving a recourse claim from the Norwegian state if Norway becomes liable subject to the Liability Convention. Based on the preparatory works of the Ecom Act, one may argue that the responsible entity is the one which directly requests permission to carry out the launch or the entity which has permission to carry out the operations in question.^[1] This view is also supported in the Government's space report of 6 February 2020.^[2]

Furthermore, the Proposal includes a legal basis for the ministry to require that the party requesting the launch of a space object provides security through insurance or a guarantee for the compensation obligations that the Norwegian state may incur under an international agreement to which Norway has acceded. 

It should be noted that the rules on reimbursement liability are not an exhaustive framework for compensation. For example, the Norwegian state cannot be held responsible under the Liability Convention for damages to national interests or foreign interests if these are part of the specific launching project.^[3] In this case it may be necessary to rely on general rules of liability for damages and contractual frameworks. In the Government's space report of 6 February 2020, a new section explicitly regulating the operator's strict liability for certain damages has been suggested but is not yet in force. 

Satellite registration 

The Proposal suggests continuing with a requirement to register all satellite systems. As of today, this is done by reporting all satellite systems to be operated by Norwegian satellite operators to the International Telecommunications Union ("ITU") via the Norwegian Communications Authority. The reason behind the requirement is that the use of satellite orbital positions excludes others from using the same position and must therefore be coordinated at an international level. 

The Proposal has changed the wording by replacing the word "shall" with "may". This is done to emphasize the right to refuse a request of registration of the satellite system from an entity which does not fulfil the necessary requirements. Furthermore, the ministry is given a legal basis to set conditions to the application procedure, application and applicant, including conditions that the entity applying for registration must assist with the necessary information so that the ministry can perform its duties towards the ITU.

Geopolitical shifts, new technology and major investments create vast opportunities for companies in the space industry. The proposed rules will likely become relevant for international and domestic satellite players alike. Although certain changes will be done because of the Revised Space Act and the Revised Ecom Act needing to be adapted to each other, we do not expect any major substantive changes to the proposed legislation once enacted.

Schjødt's Defence & Space and Digital Innovation & TMT teams have extensive experience with advising entities who are located throughout the supply chain related to space launches and the space sector in general.

^{[1] Prop.69 L (2012-2013) p. 115.
[2] Rett i bane p. 100. 
[3] Rett i bane p. 143.}