Is it a bird, is it a plane – no it’s a drone! The privacy implications of the increased use of drones

It is now easier to legally operate drones in Australia – not all drones but smaller and lighter commercially operated drones.

Drones are unmanned aerial vehicles that can be remotely or autonomously controlled. They can include cameras making them capable of taking aerial audio and visual recordings and photos raising a whole host of legal issues around privacy laws which are still to be resolved.

We have set out some of these issues below.

  1. You might be able to use a drone, but in the ACT, the Listening Devices Act 1992 (ACT) restricts the use of surveillance for recording or monitoring private conversations or activities without consent.
  2. Using a drone may also constitute a trespass of land if you enter private property. The remedies available for the tort of trespass include the payment of damages.
  3. The operation of the Privacy Act 1988 (Cth) (the Act) and the Australian Privacy Principles may come into effect where a drone collects footage that contains identifying information. However, because the Act and APPs only apply to Commonwealth agencies and organisations with a $3 million turnover or more – it will not apply to individuals, and a number of smaller organisations, using a drone. The question for the community is whether this is good enough when it comes to drones?
  4. Australia does not yet have a tort of intrusion of privacy, and a person’s physical image is not protected by copyright and privacy laws. The Australian Law Reform Commission has recommended that Australia adopt a legislative right of privacy in order to fill the gaps. To date, however, there has been no action. The High Court of Australia has also indicated a willingness to find a tort of invasion of privacy, though this is likely to require legislative reform. Perhaps an increase in drone use could see this happen sooner rather than later.

In the meantime, if you are thinking about operating a drone, be mindful of these issues and the consequences.  Also, check with Civil Aviation Safety Authority before you operate a drone to ensure you comply with the lawhttps://www.casa.gov.au/media-release/new-drone-rules-cut-red-tape

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