How safe from prying lenses do celebrities feel when sunbathing on secluded beaches or by the pool of a private villa? And how safe from prying eyes do you feel barbecuing in your garden or walking around in your flat?
Most celebrities probably realise that long-lensed paparazzi may try to position themselves to take a shot they can then sell. Celebrities may take precautions accordingly, perhaps choosing to holiday in villas with high walls. The rest of us assume that we go about our business in our own homes and gardens, for the most part, unobserved and certainly unrecorded. After all, not only are the vast majority of ordinary people of no interest to the media, the inside of their homes and back gardens cannot usually be seen from the street. Could the privacy most of us take for granted be under threat from the use of unmanned aerial devices (UADs) with video cameras and to what extent is filming over garden walls and through windows unlawful?
One of the main attractions of even the cheapest UADs is that they often come with video cameras. This provides the opportunity to film from vantage points well beyond the scope of the average smartphone and social media makes it easy to post such videos onto the internet. This article explores three main legal areas, privacy, confidentiality and harassment, which may mean that someone buzzing their drone over your garden wall or filming through the windows of your home or office could potentially be doing something unlawful. Data protection and aviation rules are considered in other articles in this issue of Download.
The first question under English law is whether the information being filmed is private. If so, the court will carry out a balancing exercise to decide whether the intrusion into the person's privacy is outweighed by the rights of freedom of expression.
"Everyone has the right to respect for his private and family life, his home and his correspondence" under Article 8 of the European Convention on Human Rights. In Von Hannover v Germany (No. 2), the European Court of Human Rights stated "Regarding photos, the Court has stated that a person's image constitutes one of the chief attributes of his or her personality, as it reveals the person's unique characteristics and distinguishes the person from his or her peers. The right to the protection of one's image is thus one of the essential components of personal development. It mainly presupposes the individual's right to control the use of that image, including the right to refuse publication thereof." The English law test for private information is essentially whether a person has a reasonable expectation of privacy.
There is little doubt that the vast majority of people have a reasonable expectation that what they do inside their homes or in their gardens is private and that it will not be filmed, published or broadcast. It might be argued that the filming itself is less intrusive than any disclosure as, for example, everyone is constantly being filmed on CCTV, and the problem should only arise if the video footage is uploaded or otherwise disclosed or used. However, this argument is unpersuasive in most cases because the filming itself, especially using a UAD, is likely to trigger Article 8 protection. It might, of course, be difficult to explain this to your child after you give him or her a UAD for their birthday, suggest they go and fly it in the garden and come back with some video footage. If the drone is being flown in a park, do the same considerations apply? In such a case, the other people in the park know that they will be seen by others and might even be caught on camera as part of a wide shot of the scenery. However, they would still probably have a reasonable expectation that they would not be filmed individually or closely without their consent. This reasonable expectation is likely to be stronger if the filming is for commercial or journalistic purposes.
Children are given more protection by the courts than adults: see Murray v Express (2008) in which the court held that J. K. Rowling's infant son arguably had a reasonable expectation of privacy that he would not be photographed with a view to publication), and Weller v NGN (2014) in which it was held that Paul Weller's 16-year and 11-month old children had a reasonable expectation that photographs of them on a family day out shopping in Santa Monica, California, would not be published.
There are circumstances where the filming and publishing of the footage without consent may not be unlawful. This could be where the filming is from afar so that no one is identifiable, where the person has consented, say at a sporting event as part of the ticketing conditions, or where there is a public interest in disclosure, for example, filming a terrorist shooting and using the footage for law enforcement or legitimate media reporting purposes.
When weighing up the public interest against the rights of privacy, one of the most important things is that the test is one of proportionality and degree. In the leading case of Campbell v Mirror in 2004, the court held that, although it was lawful for the Mirror to publish the fact that Naomi Campbell had taken drugs (to correct her claim that she did not), it was disproportionate and an invasion of her privacy to publish a photograph of her leaving a narcotics anonymous clinic, as this went too far. Those using UADs for media or other commercial use will need to consider the law before launching their UADs into the air and filming people without consent. Ordinary consumers, and particularly children, however, may not be so knowledgeable or careful about the potential privacy implications of filming other people, especially in public places. They should all, hopefully, appreciate that filming over garden walls and through windows is probably not allowed. However, as far as privacy law is concerned, safely flying a non-commercial UAD in a public place merely for fun, in circumstances where (a) some passers-by might briefly appear in the background of the footage and (b) it is not then used or disclosed, is less likely to breach anyone's rights or invoke legal action. See also the aviation rules on where small UADs can be operated.
In the wrong hands, UADs could be used to try to gain a commercial or an espionage advantage. Flying a UAD over commercial or government property may be a way to try to find out what a company or even a state is doing and perhaps to try to acquire trade or state secrets. Flying a UAD over the perimeter fence of a set to try to scoop the first images of what a new shoot will look like could also breach confidentiality. In the 1997 case of Creation Records v News Group, the claimant made the arrangements for a new Oasis album cover featuring a White Rolls Royce in a hotel swimming pool and band members and objects around the pool. Despite security measures, a freelance photographer commissioned by The Sun got inside the area and took a photo of the scene, which The Sun published. The court held that it was arguable that the taking and publication of the photograph was in breach of confidentiality. The court inferred that the photographer knew that photography was not permitted in light of the security measures and nature of the event to which he had gained access.
Harassment and stalking
It is possible that UADs could be used to harass or stalk a person. Examples could include repeatedly buzzing a UAD near a person while they are walking along the street or sitting in their garden or hovering the UAD outside their bedroom window. For the tort and criminal offence of harassment to be committed the UAD operator must "pursue a course of conduct (a) which amounts to harassment and (b) which he or she knows or ought to know amounts to harassment of the other": s. 1(1) Protection from Harassment Act 1997 (PHA). Harassment includes alarming the person or causing them distress. A course of conduct must involve conduct on at least two occasions. The test for whether the person ought to know that the conduct amounts to harassment is whether a reasonable person would think this. There is a defence if the defendant proves that the conduct was reasonable. However, it is likely to be difficult to prove that repeatedly flying a drone close to someone or outside their window is reasonable.
The media may reasonably wish to use UADs to film in places of public interest but which could put them in danger e.g. in a war zone or where there is rioting or a suspected armed terrorist may be on the loose. However, using UADs to try to scoop shots of a person going about their daily life could amount to harassment depending on the circumstances. Flying UADs on a beach with sunbathers or in close proximity of children may well cross the line if a course of conduct can be proved.
Taking the issue of harassment one step further, what is the legal position if a UAD is used to harass someone's dog? The PHA only talks in terms of a "person" being harassed. So it would not likely apply unless the course of conduct amounted to harassment of the dog's owner. However, the conduct might amount to an offence under the Animal Welfare Act 2006, if it causes the dog to suffer mentally or physically, the pilot knew, or ought reasonably to have known, that the act would be likely to have that effect and the suffering is unnecessary. There is also an offence which applies to the person who is responsible for a domesticated animal and causes it to suffer unnecessarily. Whether such offences are committed could boil down to whether the animal suffers within the meaning of the legislation or simply sees the UAD as a mild and temporary irritant or a game.
Use of a UAD to watch or spy on a person could result in the offence of stalking being committed. This applies where the course of conduct contravenes the s.1(1) harassment offence mentioned above and also amounts to stalking: s.2A PHA. Watching or spying on a person is defined as an act which is "associated with stalking". Stalking has a maximum penalty of 51 weeks imprisonment (the maximum for harassment is 6 months).
Much of the use of UADs by consumers, the media and businesses is likely to be innocent and without legal consequence. However, it is possible that abusive use of UADs could breach laws including privacy, confidentiality and harassment.