'Drones and Invasions of Privacy: An International Comparison of Legal Responses' by the late Des Butler in (2019) 42(3)
UNSW Law Journal 1039
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Privacy has been recognised nationally and internationally as a major challenge posed by the growing proliferation of drones, otherwise known as ‘remotely piloted aircraft’, ‘small unmanned aircraft’ or ‘unmanned aircraft systems’, with surveillance capability. Currently in Australia an uneven landscape of common law causes of action, surveillance statutes and data protection laws provide fragmented protection of privacy. This article compares that legal response with those of the United Kingdom and the United States. It identifies commonalities and differences between those approaches that may be instructive as Australia determines the appropriate response to the potential of invasion of privacy posed by this form of transformative technology.
Butler argues
One evening in April 2017, a 27-year-old woman in Darwin returned home from the gym, took off her clothes and went skinny-dipping in what she thought to be the seclusion of her backyard pool. However, she soon became aware that she was not alone and was shocked to see a small drone hovering 10–15 metres above her head. One month later, a similar surprise awaited a Sydney woman who stepped out of the shower of her fifth floor apartment and saw a drone looking back at her through a window. Drones are now also being employed to spy on prominent individuals for commercial purposes. For example, there have also been reports of drones being operated by paparazzi to spy on public figures. These reports highlight the potential for drones to be used in ways that may infringe on the privacy rights of others.
In addition, drones are increasingly being employed for other diverse purposes, such as surveying, inspection of pipelines and other infrastructure, filmmaking, monitoring of crops and vegetation, real estate listings, emergency services and surf rescue. Drones may play an increasingly important role in journalism, since they offer a more cost effective alternative to helicopters and may be valuable tools for newsgathering in the public interest in circumstances where other means are not available. However even such activities may inadvertently impinge upon an individual’s privacy, as occurred when a Victorian woman who was sunbathing topless in her backyard was accidentally photographed by a drone that had been commissioned by a real estate firm to advertise a neighbour’s property. In addition to high definition cameras, drones may now be equipped with a variety of technology including facial recognition software, thermal scanners and licence plate readers.
The recreational use of drones has grown exponentially, promoted through their sale in electrical goods shops and department stores, where a remotely piloted aerial vehicle with a high-quality video camera with streaming capability may be purchased for as little as $100. With such technology capable of being used ‘out of the box’ without specialist knowledge or training, there is an evident risk to not only the safety of the person and/or property but also the privacy of other individuals.
The Australian experience of invasions of privacy by drones is not unique – it is a growing phenomenon around the world. Indeed, when addressing the inaugural World of Drones Congress in Brisbane in 2017, American futurist Thomas Frey predicted that by 2030 there could be as many as 1 billion drones in the world, each with the capacity of intentionally or unintentionally capturing images of individuals. The legal responses to potential invasions of privacy associated with the use of drones may include dedicated common law causes of action for invasion of privacy, more general common law causes of action that may extend to protect privacy, dedicated statutory causes of action for breach of privacy, privacy legislation that may extend to drones and legislation that specifically applies to invasions of privacy by drones. Such responses of other countries may therefore be instructive when considering the current and possible future responses of the law to this form of invasion of privacy in this country.
Following this introduction, this article examines the regulatory and privacy laws that are relevant to invasions of privacy by drones in each of Australia, the United Kingdom and the United States. While regulation and privacy protection may be thought of as distinct issues, they are nonetheless intertwined: for example, limitations placed on where and how drones may be used may affect the opportunities to use a drone to invade another’s privacy. The article then identifies commonalities and differences that may be instructive as Australia determines the appropriate response to the potential of invasion of privacy posed by this new form of technology.
