16.03.16

Drones Wreaking Havoc on Right to Privacy

Rachel McLarty
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Drones Wreaking Havoc on Right to Privacy

The word ‘drone’ tends to be the popular term used for unmanned aerial vehicles (UAV), unmanned aircraft systems (UAS), remotely piloted aircraft (RPA), but to some they might as well be unidentified flying objects (UFO). They closely resemble remote-control helicopters and many are fitted with cameras for taking photographs or filming.

Drones equipped with cameras do have commercial uses such as crop inspection and photographing real estate. They are also commonly used to photograph and film large events and functions.

The problem is that the laws governing the use of drones have not kept pace with technology or their increasing popularity. Currently, there is little to prevent enthusiasts from buying drones and using them for whatever they desire. Sadly, that includes peeping at neighbours and spying on anyone within a certain distance. There seems to be a new dimension to the use of drones to invade peoples’ privacy.

This article focuses on: (a) privately owned drones used for civilian and commercial purposes, (b) the possible invasion of one’s privacy by their operation, and (c) whether that invasion is or may be regulated and curtailed by laws and regulations.

Drones have become cheaper to acquire and easier to operate. Globally, they are a hot topic for want of regulation and it is just a matter of time before our laws are tested here too.

Right to privacy

Jamaica’s Constitution secures for every Jamaican the right to enjoy respect for, and the protection of, his or her private and family life, and also privacy of the home. Privacy rights are also governed by international conventions and human rights laws.

In terms of legislation, if drones fall within the definition of aircraft, it is likely that the activities of drones may be governed by the guiding principles of the Civil Aviation Act. Under the Act aircraft are machines which derive support in the atmosphere from the reactions of the air. However, that Act does not contemplate an invasion of privacy by small low-flying aircraft.

Consider the scenario where the invasion takes place over one’s land, below the tree line, but does not touch the land. It is via a drone hovering in the airspace directly above one’s property within say 30ft above ground at a bedroom window, and yes, outfitted with a camera and therefore possibly taking pictures. That’s tantamount to someone entering premises with a ladder, climbing up to a bedroom window and taking pictures.

Generally, where someone physically (bodily) invades another’s premises, there are laws which apply and punishments which may be meted out via the court.

The question of the adequacy of our laws’ protection of our right to privacy therefore arises.

One school of thought is that actions as a consequence of drone harassment may be brought under private nuisance, harassment, trespass and invasion of privacy. Any such action, however, awaits testing via our courts. The tort of nuisance offers protection from actions of trespass on our rights by neighbours, but the operation of a drone may not be by a neighbour and the damage it causes may not be physical. That tort as presently defined is inadequate. If redress if unavailable under any other law, then resort may be had to a constitutional action.

Drone ‘shottas’ – a few rights in the UK and USA

Last year, police in the UK shared with national media information on a huge spike in the number of drone-related incidents which included spying on children and following people to their homes. There was even an incident in which one person called the police and admitted that he’d shot a drone with his rifle.

In fact, for the first time, a drone operator was fined and banned after he repeatedly flew drones over premier league football games, Buckingham Palace and parliament buildings.

According to the UK’s International Business Times, responsibility for illegal or irresponsible drone activity is to be removed from that country’s Civil Aviation Authority, and placed squarely in the hands of the Police.

The UK’s Information Commissioner’s Office, an authority mandated to uphold information rights in the public interest, has published tips on the responsible use of drones which include: advising people prior to recording; having consideration for the surroundings; knowing the camera and its capability; planning the drone’s flight; keeping sight of the drone; thinking before sharing the images; and safeguarding the images.

Heading back to this side of the Atlantic to Kentucky, USA, a man in 2015, blasted his neighbour’s drone out of the sky with a shotgun and was arrested and charged with first degree wanton endangerment and criminal mischief. The County District Court Judge dismissed the charges. The Judge stated that he was in his right to protect his family and property from the intrusion of the drone. In that instance, eye witnesses confirmed that the drone hovered below the tree line.

The case led to the tabling of a drone harassment bill, in Kentucky, seeking to limit the use of drones there.

Additionally, in the state of California the use of “paparazzi” drones is illegal by statute. Interestingly in that state, the definition of “physical invasion of privacy” was amended to include instances of drones invading airspace to take photographs among other things.

Adding balance to the perspective, according to Bloomberg Business, some drone enthusiasts view the new law proposals as an overreaction and feel that the regulations are misguided. They add that their actions have been interpreted incorrectly by members of the public who are unfamiliar with the technology or are just plain nervous.

Here at home, operators of privately owned drones are counting on the relative flexibility they now enjoy in operating them to continue, for a while. However, as the dialogue strengthens and awareness increases, the expectation should be that statutory controls and limits will follow. This does not however mean that invading people’s privacy can go unchecked even now, as the umbrella protection afforded by our constitution is accessible if needed.

Rachel McLarty is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Rachel may be contacted via rachel.mclarty@mfg.com.jm or you can visit the firm’s website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.