You may or may not have recently seen me on Paul Henry’s show talking about new rules regarding drones, along with the privacy concerns they bring.
On 1 August 2015, Civil Aviation Rules amendments come in to force covering the use of drones. They basically update the existing rules that cover model aircraft, to take account of the massive rise in popularity of drones. Civil Aviation laws are primarily concerned with safety. The biggest change these rules introduce is a new requirement that drone operators obtain consent of occupiers of private property before flying over their property. Further, the new rules require drone operators to obtain consent of individuals before flying over them, whether they are occupying their own property or not. These rules are not directed at privacy. They are directed at safety, and recognise the fact that drones can weight up to 15kgs without any certification being required. We know they can fall out of the sky.
The requirement to obtain consent from individuals that are going to be below a drone makes it a breach of civil aviation rules to record concerts or sporting events with drones. This can be side-stepped in two ways; either consent can be required by the event organisers as a condition of entry, or, the operator can apply to the Civil Aviation Authority for certification as a drone operator, with an exemption from that particular rule.
What these rules do not prevent, is someone piloting their drone in a public place in a manner which gives them the ability to film or stream images of you in private property. Your neighbour might be able to hover above their property and look in your second story bedroom window. This exact thing happened in Masterton, and, the hapless bedroom-dweller had no luck reporting this to the Police. They reportedly told the guy that they did not have a policy on drones.
To date, Police refer such complaints to the Civil Aviation Authority. As the CAA have no rules relating to privacy, the refer people to the Privacy Commission. While the Privacy Commission have views on drones, they appear to have only received one complaint to date arising from drone use.
Put bluntly, our laws fall short in protecting people from invasions of their privacy from drones. Unless you’re naked, or in a state of undress it’s unlikely to be a criminal matter. Section 216G of the Crimes Act 1961 defines an intimate visual recording, and Section 216H criminalises the act of making one (even if it’s simply streamed, not saved). While Section 30 of the Summary Offences Act 1981 creates a finable offence if you’re found peering into a dwelling house at night, it would be difficult to successfully prosecute on the basis of a drone looking in, and even then, you’re not allowed to fly drones at night anyway.
Now, our Courts do recognise a civil action for breach of privacy, where you have a reasonable expectation of privacy and that is breached. If you’ve got an otherwise private back yard, and you or your children are photographed, people can’t publish those photographs. You may have recourse to the civil justice system to hold the drone operator to account. You can lay a complaint with the Privacy Commission, but they don’t have the power to fine anyone or award damages. They simply investigate the complaint and write a report. Sure, that report might be very handy in civil proceedings, but, one can’t help but feel a little cynical about the only watchdog to complain to about an invasion of privacy by drone having no teeth.
So, what recourse do you have if you see a drone and believe it’s spying on you? Can you take to it with a garden hose or shoot it out of the sky? No. That would be a clear breach of the drone owner’s property rights, and would likely land you in court on a charge of intentional damage. What you can do, is take pictures of the drone, and try to find the operator. Drones need to be in direct line of sight from the operator, so, chances are you will be able to find them with some lateral thinking. At that point, I can only suggest filming them (presuming they’re not naked or in a private place, of course) and asking them politely what they have been looking at. Don’t do what this guy did and stomp the drone when it lands. There may be a simple explanation like this dad’s poor judgment call to film his kids at a swimming event.
We need stronger laws to account for a rise in the availability of technology that can easily invade private sanctuaries. Until they eventuate, though, we’re left with the current rules. If you want to learn more about the CAA rules you can read them here.