Drones, or remotely piloted aircraft, are fast becoming the gift of choice for gadget enthusiasts. But what rules and regulations do these aviators need to comply with? The law is struggling to catch up with regulating drone use and the rights that individuals have against the use of drones in their private space. Below, we highlight some causes of action you might have against someone that you suspect is invading your privacy with their Christmas gift.
Where Can You Fly Your Drone?
In Australia, the Civil Aviation Safety Authority (CASA) regulates the use of drones for recreational and commercial purposes. If you are using a drone for recreational use, then you will need to comply with the following guidelines under the Civil Aviation Act 1988. For example, subpart 101 of the Civil Aviation Safety Regulations 1998 includes provisions that prohibit you from flying your drone in the following areas or circumstances:
- Within 5.5km of a controlled airspace, such as airports or helicopter landing pads;
- Above 120m above the ground;
- Within 30m of any person, building, vehicle or boat;
- During night-time or through any cloud or fog;
- When the drone is not in the pilot’s line of sight (in other words, you must be able to see your drone at all times); and
- Over heavily populated areas, such as beaches, parks, sports games or other people’s backyards.
Although you don’t need a licence to operate a recreational drone, if you fall foul of the above rules, you can be fined up to $8,500 by CASA. Recently, a man received an $850 fine because he crashed his drone during a police operation in Altona, Victoria. The drone crashed into a power line and narrowly missed hitting a police officer when it fell.
A Licence to Fly
For any commercial use of drones, owners must first receive a licence from CASA known as an unmanned operators certificate (UOC). Businesses can use drones for a wide-range of activities from advertising and aerial surveying to photography and powerline inspecting. Once licensed, drones may be used as per the restrictions applied to recreational drones unless they apply for greater area approval. CASA are currently reviewing the regulations in subpart 101. For any updates in the rules regarding drone use or further information, please visit the CASA website.
BD: Before Drones
Relevantly, State and Territory Acts regulate surveillance. In NSW, the Surveillance Devices Act 2007 includes provisions prohibiting individuals from recording or monitoring an individual’s activities through the use of cameras, surveillance or tracking devices, and could possibly cover drone use.
Some States and Territories also have legislation making photography for an improper purpose a criminal offence as well as prohibitions against stalking and harassment that might apply in some situations. Although these do vary greatly between the States.
Common law torts including trespass and nuisance may assist an individual who feels drones have invaded his or her privacy. For example, in Raciti v Hughes (1995) 7 BPR 14 837, the plaintiffs were successful in their claim for nuisance and the court granted an injunction to stop the defendant’s use of motion-triggered lights and surveillance cameras that were aimed at the plaintiff’s backyard.
AD: After Drones
The important thing to note is that the above recourses predated drone technology becoming more readily accessible. As such, it is unclear how much the above causes of action will assist those who feel wronged by another’s use of drones.
There are clearly gaps and inconsistencies in the law regarding privacy protection from drones. Following Federal and State inaction on the issue, Sydney’s Leichhardt Council drafted its own local laws banning the use of drones in parks and public spaces. This was also in response to several incidents, including one where a drone was used to take pictures of Jennifer Hawkins’ house from outside the property limits, and another where a drone was used to observe women sunbathing on a beach.
In September 2014, the Australian Law Reform Commission tabled a report detailing the inadequacies of the current law and some prospects for reform. CASA is also in the process of updating its drone regulations and hopes to complete this by 2016. However, they are only responsible for the safe use of drones and do not have jurisdiction to weigh in on the privacy implications of their use. Only time will tell the position the government chooses to take on this increasingly important issue.
The laws treatment of drones remains unclear. We recommend that in the meantime, you inform your local council of the use of drones in public places, such as beaches or if you notice any questionable use of drones taking place. You should first record evidence of your drone through photos before notifying the council, police or seeking legal advice.
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