Amy Nikolovski: Drone use adds weight to the argument that we should enjoy a legal right to privacy

The rise of recreational drone use adds weight to the argument that Australians should enjoy a legal right to privacy, writes Amy Nikolovski.

There have been several reports since Christmas of drones flying perilously close to beachgoers, buzzing ominously over backyards, or in one UK case, shutting down a whole airport.

The Civil Aviation Safety Authority (CASA) regulates the use of drones.

For the typical recreational drone that thousands of Australians received for Christmas, the rules prohibit flying drones higher than 120m above ground or within 30m of people and you cannot fly a drone at night or near populous areas.

Drones must also be in the user’s line of sight. Any drone weighing more than 100gm cannot be used within 5.5km of a controlled aerodrome (such as Adelaide Airport).

SA also has specific laws banning the use of drones in national parks, reserves and marine park restricted-access zones without a permit.

Basically, you cannot fly a drone in a way that endangers any person, property or aircraft. It’s common sense, but some people have been using their new toys with no awareness, or blatant disregard, of the laws.

Violations of drone flying regulations can be reported to CASA, which can investigate and administer fines of up to $10,500. They cannot investigate breaches of privacy.

Indeed, there is no formal right to privacy under SA law, so you may not have any legal recourse if you feel violated by the presence of a drone.

You may be able to sue for nuisance or trespass, but it can be difficult to prove, especially if the interference is fleeting or where the drone was not close enough to the property in question to satisfy the legal requirements of trespass.

Using a drone to film people in situations where they would expect privacy could be unlawful under SA’s surveillance laws, which criminalise covert filming of private acts.

Again, it may be difficult to prove an operator breached surveillance laws given how easy it is for drone users to remain incognito.

At a more sinister level, there have been alarming examples in Australia of people using drones to spy on and torment former spouses who are trying to escape their abusers. Such behaviour may constitute stalking, but to prove unlawful stalking you must demonstrate a repeated pattern of behaviour.

The rise of recreational drone use adds weight to the argument that Australians should enjoy a legal right to privacy.

In this digital era where it’s easy and cheap to spy on others, not to mention the government’s increasing powers of surveillance of its citizens, having little to no recourse to take action for invasion of privacy is a major gap in our laws.

Apart from providing a potential legal remedy, the establishment of a privacy tort would also reinforce the message that privacy should be valued and respected.

Amy Nikolovski is President of the Law Society of SA