Reaching Dangerous Heights? The Legal Obligations of Drone Operators
Unmanned Aerial Vehicles (UAV), otherwise commonly known as “drones”, have attracted strong consumer interest due to their greater availability and affordability.
Obligations of Drone Operators
Consumers can, at present, purchase a drone from a local retailer with no prior education or knowledge of the applicable rules and regulations that apply to drone use.
There are two parts to the Civil Aviation Rules governing drone operations. Part 101 concerns the relevant operating rules while Part 102 addresses the proper certification of the drone operator. Part 101 only applies to those drones which weigh 25 kilograms or below whereas, if the drone in question is above this weight and its operation does not comply with Part 101, the operator must obtain proper certification in accordance with the regulations under Part 102. Drones can be used for commercial and personal use without the need for consent from the Civil Aviation Authority if the operator is compliant with Part 101. As the majority of drones that are available to consumers from commercial retailers are below this weight, this means that most consumers do not have to acquire certification.
If a drone operator is deemed to have acted in breach of the Civil Aviation Rules, the Civil Aviation Authority has the power to confiscate the drone or issue an infringement notice on the drone operator. In the event that the drone operator has acted in severe contravention of the rules, so as to pose a risk to other persons or property, a monetary fine may be imposed or the operator may face criminal prosecution.
Another rising concern with regards to drone use are issues associated with the potential for encroachment on one’s privacy. The Civil Aviation Rules expressly state that if a drone operator intends to fly his or her drone over a public or private space, consent of individuals that the drone may fly over is required prior to use.
There currently exists two privacy torts in New Zealand law being wrongful publication of private factual information and intrusion on seclusion. The tort of wrongful publication of private factual information comprises the following elements:
Information which exists and carries a reasonable expectation of privacy;
Publicity given to that private information which would be perceived as highly offensive to an objective reasonable person.
A complaint was made to the Privacy Commissioner in 2015 relating to a situation where a drone flew close to the complainant’s apartment to film the local cricket match for Sky TV. It was claimed that the drone had collected highly sensitive information and had flown in an invasive manner. The Privacy Commissioner held that for there to be a breach of the privacy principles contained under the Privacy Act 1993, information of the complainant had to have been collected by the drone operator. It was held that as the drone operator had not collected any information in relation to the complainant, there was therefore no resulting breach.
It is clear, however, that where there would be a reasonable expectation of privacy – such as the front lawn or backyard of one’s property – information that is deliberately collected without the prior consent of that individual would most likely amount to a breach of privacy by the drone operator. It remains a matter of degree and circumstance as to whether there is a breach of a reasonable expectation of privacy, however a failure by a drone operator to obtain the consent of those of whom the drone flies over is in contravention of the regulations under Part 101 of the Civil Aviation Rules.
As the drone industry continues to grow, so too does the demand for appropriate regulation to ensure that drone operators are responsible for ensuring that they operate in a manner which does not pose a substantial risk to safety or is intrusive on one’s expectation of privacy.
The current regulations make it clear that drone operators must take active steps to ensure that the use of a drone does not pose a significant risk to others and property. Due to the relatively modern nature of drone use, there is minimal commentary by the courts as to the position of drone use with regards to privacy. It will remain a developing area which will be observed with intrigue and attentiveness.
For personalised advice on the current obligations of drone operators and compliance with privacy and civil aviation law, please contact Toby Giles.