Part 1 dealt with the tort of trespass and asked “does hovering a drone 30 metres above private property, with the drone equipped with a camera being used to observe/record persons on the land below, involve a breach of an individual’s right to privacy?”.

The issues include:

1. What, in Australia, is the law regarding the right of an individual to live without their lives being observed/recorded by others?
2. What practical protection of our privacy does the law currently provide?

Privacy of the physical person is sometimes referred to as the privacy of personal behaviour. In other words, what you privately do or don’t do, where you go, the people you associate with – your private life. Everything that is not done in public is a part of your private life.

Your legitimate expectation of privacy may even extend to some aspects of your presence in a public space. If you are sitting in seclusion on an isolated beach you are in a public place, but would that give a drone operator the right to film you? Many people would think not – unless the image is so distant as to render you unrecognisable.

On the other hand, the capture of your image by CCTV sitting on the train would not amount, in the minds of most people, to an infringement of privacy. Why not? Because the degree to which your privacy should be protected competes with the interests of society as a whole and some balance must be achieved.

Clearly society benefits from the law enforcement and deterrence effects of CCTV cameras in some public places. The footage is not ordinarily broadcast or otherwise published and if, for some reason, it needs to be, then innocent bystanders are usually pixelated to avoid unnecessarily intruding on their private lives.

The operator of a drone equipped with a camera is clearly capable of intruding upon your private life, whether by hovering above your residence and filming your activities inside, seen through a window or skylight, or in your backyard or elsewhere.

What can you do about it?

Under the current laws in Western Australia, very little. While your rights as a landowner or occupier may be infringed because of the law against trespass (as covered in Part 1), that has no application to any intrusion on your privacy that may occur on land of which you are not the landowner or occupier. There can be no suggestion that you could rely on the tort of trespass if photographed by a drone while you are on a public beach or camping out in a national park, for example.

What may be more of a surprise is that there is no unequivocal statutory provision that will be infringed by an individual operating a drone to capture footage shot through your kitchen window, or in your private backyard normally blocked from prying eyes by a wall.

The Commonwealth Privacy Act 1988 (“the Act”) applies only to Commonwealth agencies, and private enterprise corporations with an annual turnover of more than $3 million (with exceptions). So private drone operators, State government agencies and small companies have little to fear from the Act. In any case, the constraints in the Act on intrusion on privacy are particularly ineffectual.

Under the National Privacy Principles before March 2014, the agencies and entities in the private sector caught by the Act were not permitted to collect personal information “in an unreasonably intrusive way”. With that form of words there would be scope to argue that the capture of footage of you by a drone operator was “unreasonably intrusive”. However, amendments to the Act and the introduction of the Australian Privacy Principles (“the New Principles”) that came into play in March 2014 saw the deletion of the constraint on acting “in an unreasonably intrusive way”. Now the entities to which the Act and the New Principles apply are merely required to collect personal information only by “fair means” – a particularly vague term.

Assuming that a drone operator is an individual, or a corporation with a turnover of less than $3 million, they will not be at risk of infringing even the weak rules embodied within the Act. They may also not be caught by the definition of “private activity” in the Surveillance Devices Act 1998 WA (“the SDA”), particularly if what has been filmed was occurring out-of-doors.

The definition of “private activity” in the SDA is:

“private activity means any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desire it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed.” (emphases added)

This definition might be construed as applying only to activities that occur within an enclosed space, for example, a room with all doors closed and all blinds drawn. It may not, for example, extend to a person sunbathing alone in their private garden – because the first requirement may not be satisfied since the circumstances may not “indicate” that the sunbather desires the activity to be observed only by themselves. Clearly, they could be observed by any other occupant of the property, unless perhaps they can prove that they are the sole occupant at the time and that that was a relevant circumstance to be taken into account. However, even if the first part of the definition is satisfied, could it be said that the exclusionary part would not apply i.e. that they ought reasonably to expect that the activity may be observed? And, by implication, if capable of being observed capable also of being recorded.

As drones become more “normal”, it will be arguable that people ought reasonably to expect to be observed anywhere within a drone’s reach (which is most places, including through a window into your kitchen/bedroom if you forget to draw the curtains). This would have a serious impact on our privacy and quality of life.[1]

Young people today are already experiencing the consequences of widespread digital transmission – if they drop their guard at a party and do something silly (or normal, for a young person), it could be a viral sensation within hours. This destroys peoples’ lives.

The constant hovering presence of drones could similarly have a fundamental, and unsettling, impact on us all. We need laws imposing responsibility on people who may otherwise abuse the power that this new technology brings.

The decision in Re Surveillance Devices Act 1998: Ex parte TCN Channel Nine Pty Ltd, an unreported 1998 decision of the Supreme Court of Western Australia (Justice Owen)[2] confirms the uncertain scope of the definition of “private activity”. Justice Owen referred to the definition as being “extremely broad” and “a little loose”. The case concerned a journalist, wearing a concealed audio and video device, speaking with “the target” in the yard of the target’s residence in a position shielded from sight and out of earshot of people “in the vicinity” i.e., presumably, anybody else on the property or in the street.

Justice Owen considered the statement made by the Minister to Parliament on the introduction of the Bill for the SDA, that “it is envisaged, generally, that activities carried on outside a building would not be considered private”, and placed emphasis on the word “generally”. The Judge concluded, in the circumstances of that case, that the first part of the definition was satisfied and also that the exclusionary provision did not apply. However, the judge also stated:

“Obviously the location and physical environment in which the incident takes place will be of great significance in deciding what the parties expected and, with the degree of objectivity that the word “reasonably” imports, should have expected.” (emphasis added)

In the pre-drone times of 1998, the answer to the question, “What might reasonably be expected, with respect to observation of out of doors activities on private property?”, may not be the same as the answer today with drones and other airborne imaging technologies (think Nearmap and Google Earth) becoming an incident of everyday life.

Drone operators are also unlikely to be infringing the International Covenant on Civil and Political Rights (“the ICCPR”). The ICCPR appears to provide no human rights basis in Western Australia for enforcing a right of privacy.[3]

The Need for Change in the Law

Those concerned with the law of privacy in Australia do appear to at least be taking notice of the inadequate legislative regime for the protection of privacy in the context of rapidly increasing use of drones. In a report in the Australian newspaper on 16 January this year the Privacy and Information Commissioner is reported as having expressed concern over laws to deregulate the commercial operation of drones saying that it could lead to an increase in drone – related stalking, harassment and unlawful surveillance.

The Commissioner made a submission to the Senate committee investigating the safety implications of the new rules, which will allow commercial operators to fly without a licence if their drones weigh no more than 2kgs. The Commissioner said that remotely piloted aircraft posed significant risks to privacy, given their capacity to freely manoeuvre through airspace with “little accountability”. The article notes:

“Drones have become a popular tool of paparazzi who flout privacy rules to snap pictures of sunbathing socialites and celebrities’ houses from outside the property limits.” (emphasis added)

That comment is interesting for two reasons. Firstly, it highlights the limitations regarding the tort of trespass. If the drone operator ensures that the drone never crosses the property boundary, there is no prospect of being liable, assuming that the victim is able to identify the operator (which, as I pointed out in my previous article, may frequently be impossible), because entry upon the airspace above the property (at a sufficiently low height) is essential for trespass to have occurred.

Secondly, the comment suggests that the paparazzi in question would be breaching certain “privacy rules”. What rules are they? As disclosed above, it is difficult to identify any law in force in Western Australia that the drone operator would clearly be infringing.

How Should the Law Be Changed?

In California, an amendment to the Civil Code took effect in late 2015 to expand privacy protections to prohibit intrusion on “airspace above the land of another person without permission”. Previously, the Civil Code prohibited a person from “knowingly” entering upon the land of another without permission to capture any type of visual image, sound recording or other physical impression of a person engaging in a private, personal or familial activity in a manner which is offensive to a reasonable person.

The loophole permitting paparazzi and other voyeurs and busy beaks to fly over properties beyond fences and locked gates to capture intimate details of private lives or to otherwise spy was closed. In my view, that amendment to the law does not go far enough. It does not, for example, prohibit a drone operator from positioning the drone outside the property boundary and using a suitably high resolution zoom lens.

A suitable law would be one that prohibits the observing or recording of images of an individual in any situation where it can be concluded that they have a reasonable expectation of privacy. In other words, where, on any reasonable analysis of the circumstances, it can be concluded that the individual is engaged in living their private life – not a public life.

That should then protect you in the secluded beach setting and the bush camp examples and, hopefully, also in the kitchen window example. On the other hand, it would not protect you if you are protesting on the steps of parliament house before television cameras. There could be no “reasonable expectation” by you that such an activity was private.

The Australian Law Reform Commission in fact recommended precisely such a change to the law in its report “Serious Invasions of Privacy in the Digital Era” tabled September 2014. Its recommendation was the enactment of a new statutory cause of action for serious invasions of privacy which should be applicable to drone operators if they record an individual in circumstances in which the individual would have a reasonable expectation of privacy. Unfortunately, as yet the Commission’s recommendation has not generated any legislative action.

 

Notes

1. Mr Boggs, the man in Kentucky who shot his neighbour’s drone out of the sky and was acquitted of a criminal charge over the incident, has encountered the civil law. His neighbour is now suing him for damages for the destruction of his drone.
2. My suggestion of an electronic number plate was not as original as I thought. A Californian Assemblyman introduced legislation (The Drone Act 2016) into the Assembly that would, amongst other things, require drones to be equipped with an electronic number plate. The legislation was, however, vetoed by the Governor of that State principally because of concerns that it would clash with proposed Federal law – the Federal Aviation Authority wants to retain a monopoly over the control of national airspace.
3. A Drone Aircraft Privacy and Transparency Act 2015 introduced into the US Senate is reported to have “died in congress”. I presume it was shot down.
4. A local (Perth) manufacturer of sophisticated drones, Scientific Aerospace, has developed an electronic signature capability to enable the monitoring of drones in flight. I hope that, with the impetus of legislation, that technology becomes standard.

[1] Because of developments in drone and also camera technology, it may not now be safe to assume that an activity occurring within a building, but obviously observable from outside (e.g. through a window), is being carried on in circumstances that may reasonably be taken to indicate that one or more of the parties desires it to be observed only by themselves. Knowing that hovering drones abound as a normal incident of life, as they may very well soon do if that point has not already been reached, what exactly is it about permitting your activity within your home to be observable through a window that can be taken to indicate that you desire that it go unobserved by others? – and why would it not be concluded that you ought reasonably to expect that it may be observed?

[2] BC 9908035

[3] In his excellent article “The Regulation of the Impact of Civilian Drones on Behavioural Privacy” by Roger Clarke published in June 2014 Mr Clark noted:

“only two of Australia’s eight subsidiary jurisdictions have human rights instruments, and both are mere statements of aspiration. The ACT and Victorian Acts merely replicate the vague wording of ICCPR 17.1”

“a person has the right not to have his or her privacy, family [or] home … unlawfully or arbitrarily interfered with”, and failed to implement ICCPR 17.2 regarding “the right to the protection of the law against such interference”

They are thereby entirely unenforceable. People in countries with such valueless laws have no recourse to human rights as a means of protecting themselves against privacy – abusive uses of drones.”