In Australia as well as overseas, the popularity of small, unmanned, remotely piloted aircraft (often quad-copters or similar) with capabilities including carrying cameras – ‘drones’ – is booming. Drones are available at various prices, with greater or fewer technical capabilities accordingly. At the lower end, drones are perhaps something of a novelty item, and are likely to be one of the most-purchased items this holiday season. More sophisticated versions have been singled out for mention as to their potential utility in a range of industries: from journalism and cinematography; to police and emergency services; and agriculture and scientific research. Moreover, the technology is developing rapidly.
What drones of all stripes seem to have in common however, is their increasing ubiquity. In this light, this focus paper addresses the current regulatory framework surrounding three issues that should be of particular concern to drone operators as well as businesses that engage them and persons who might be affected by their use. These are: their operation and associated safety issues; the possibility of breaching the law via a drone, especially in trespass or nuisance; and the hot-button issue of drones and privacy. For example, what, if anything, can a person do about a drone flying and filming over their home?
What’s in a name – Drones or RPAs?
The term ‘drones’ is considered by some to connote the type of military aircraft that have been used for strategic strikes in conflict areas. The approach of reform committees and the main regulator has been to prefer the term RPA – Remotely Piloted Aircraft – which will be the term used for these types of vehicles in the rest of this paper.
RPA Operation and Safety
Currently, RPAs are regulated under the Civil Aviation Safety Regulations 1998, Part 101, and supervised by Australia’s Civil Aviation Safety Authority (CASA). The regulations are focused on safety. If RPAs are used recreationally (not for profit) and kept within line of sight, effectively the same rules that apply to model aircraft will apply.1 Restrictions generally include: staying more than 30m away from third parties; not flying within 5.5km of airports; keeping flight below 400ft (120m); and not flying over “populous areas”. Populous areas are areas containing sufficient people that failure of the RPA might pose an unreasonable risk to the life, safety of property of someone unconnected with the RPA’s operation. CASA has cited beaches, other people’s backyards, heavily populated parks, or sports ovals where there is a game in progress, as examples of such areas.
The Standing Committee on Social Policy and Legal Affairs has expressed concern about what appears to be a general lack of awareness of RPA regulation and the risks posed by RPAs on behalf of consumers without a background in aviation2, concerns that have been mirrored elsewhere. In Australia alone, safety incidents involving RPAs have included: an operator assuming his RPA had crashed into Sydney Harbour, when it had in fact collided with the Harbour Bridge, landed on the train line and been initially identified as a possible bomb; and a rescue helicopter having to take evasive action to avoid a potentially serious collision with an RPA at 1000ft.
As far as non-recreational use is concerned, RPAs may only be operated for hire or reward if CASA has issued the operator a certificate authorising them to do so. Certified RPA operators are subject to the restrictions in their certificates (which may be amended) and regulations, with other operations requiring approval from CASA. Businesses considering taking advantage of RPA technology, should ensure that they engage a certified operator, and that the proposed operation is within the scope of CASA authorisation.
CASA is in the process of updating the regulations as they apply to RPAs, which were introduced in 2002. The current reform proposals continue to group recreational RPA use with model aircraft use, although separate rules may be developed in future. The proposed changes are directed mainly to commercial RPA use. In particular, operation of RPAs, within ‘standard operating conditions’3 that weigh less than two kilograms would be considered ‘low risk’ and exempt from certification requirements and operational approvals. More guidance is also provided about what would be a “populous area” in an urban environment – for example, an oval without any people on it (that could be used to take photos of real estate adjacent to it). CASA expects these proposed changes to be implemented by 2016.
RPA Use – Trespass and Nuisance Issues
Even if an RPA operates smoothly and causes no injury or damage, other issues to be aware of include the possibility of trespass or nuisance. CASA approval does not grant an operator any rights against owners or occupiers of land over which RPA operations are conducted; nor does it grant immunity from claims in respect of injury to persons or damage to property.
Landowners’ rights have been hyperbolically described as extending “from the heavens above to the centre of the earth below”.4 While not literally true, a trespass can arise from intentionally invading the ‘lower stratum’ of a landowner’s airspace where its control is reasonably necessary for the landowner’s enjoyment and ordinary use of his or her land and the structures upon it at ground level. In New South Wales and other Australian jurisdictions, statutes restrict the applicability of trespass or nuisance to overflight by aircraft. However, this legislation in NSW, has been considered unlikely to apply to RPAs.5
On this basis, whether an RPA has trespassed will be fact-dependent, turning on whether the potential use and enjoyment of the land and the airspace by the occupier has been interfered with from within the limits of that occupier’s use of the land. There is currently a substantial lack of authority on this point, although the possibility of trespass-by-RPA has been noted by the Law Reform Commission and other bodies. What is clear from the case law is that a flight at 500 feet over a property in an airplane for aerial photography has been considered not to amount to a trespass.6 The lower an RPA descends over a person’s property (including in order to comply with CASA regulations), the greater the risk of trespass.
RPA operation over a property that substantially and unreasonably interferes with its use and enjoyment could also ground a nuisance action – and this might be more likely if surveillance is involved. There has been judicial suggestion that if a plaintiff was “subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity” an action in nuisance might be available.7 Depending on the facts, other operational characteristics of RPAs might increase the likelihood of nuisance, including: loud buzzing, lower speeds during flight, and operations involving sustained hovering.
Especially with the recommendations for reforming applicable privacy legislation (see below), persons wishing to use RPAs should be alert to legal risks that go beyond safety alone.
RPAs and Privacy
Privacy issues are routinely raised in tandem in discussions about RPAs. Recent incidents include the real estate agent whose RPA aerial promotion photo included a partially clothed sunbather in an adjoining property, taken and published without her knowledge or consent.
Most Australian jurisdictions possess legislation restricting audio and visual surveillance (for example, the Surveillance Devices Act 2007 (NSW)), but protections vary from state to state and the overall framework in respect of privacy is fragmented and difficult to summarise briefly. Suffice it to say that particular care should be taken before recording any conversation or activity that might be considered ‘private’; and that recommendations have been made to consider the introduction of harmonised surveillance legislation across Australia that is technology neutral and provides no fewer protections than currently exist.
Recommendations have also been made to address the lack of a free-standing privacy tort or similar in Australia in the face of new, privacy-invasive, technologies including RPAs.8 The Law Reform Commission has suggested creating a tort of serious invasion of privacy, although this measure seems unlikely in the current political climate. Regardless, persons who wish to use RPA technology should be attentive to privacy relaxed issues, as well as to when invasion-of-privacy type scenarios might fall within the tort of breach of confidence. The novel fact situations that could potentially arise from drone use might also contribute to the development of the law in this area.
Further, and despite CASA’s preference to remain solely focused on air safety issues, recommendations have been made that it disseminate information on Australia’s privacy laws to RPA purchasers. With an increased emphasis on making the public aware of these restrictions there may also be an increased willingness to prosecute allegedly infringing conduct.
Given the novelty and fast-developing pace of RPA technology it is important to be aware of the broad ‘danger zone’ areas discussed above when considering potential RPA use. Depending on the RPA operation under consideration, it may be useful to seek more in-depth advice. Further, mirroring the development in RPA technology are associated proposed legal developments, particularly at the RPA/privacy intersection. Monitoring these developments and considering their effects will be essential to those wishing to utilise RPA technology, especially on a commercial basis.
1.See generally CASA (www.casa.gov.au) and the Model Aeronautical Association of Australia (www.maaa.asn.au) together with CASR 1998, Advisory Circular 101-01, and the ‘Flying with control? Get to know the rules’ brochure available at: (http://www.casa.gov.au/wcmswr/_assets/main/lib100071/flying_with_control_model.pdf)
2. Refer http://www.aph.gov.au/~/media/02%20Parliamentary%20Business/24%20Committees/243%20Reps%20Committees/SPLA/Drones/fullreport.pdf at [3.25] and associated recommendations at end of Part 3.
3. Similar to the current restrictions on model aircraft and recreational RPA use.
4. See the maxim ‘cujus est solum ejust est usque ad coelom et usque ad inferos’ – ‘to whomsoever the soil belongs, he owns also to the sky and to the depths’.
5. See Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (DP 80) at [3.38]
6. Bernstein of Leigh v Skyviews and General Ltd  1 QB 479
7. Ibid at 489.
8. As discussed above, footnote 2 at 48.
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