The complex regulatory regime surrounding the use of drones in Australia can give rise to significant challenges, particularly for companies wishing to integrate drones into their day-to-day activities. Before using this new technology, both businesses and individuals must ensure they are familiar with specific drone regulations and other applicable laws such as privacy and copyright legislation.
Until now, drones, or remotely piloted aircrafts (RPAs), have largely been used for recreational purposes. However, recent significant advances in technology have meant new opportunities are beginning to emerge for the use of drones in a commercial context.
In combination with other functionalities such as GPS and live streaming technology, the potential applications for drones now range from security and surveillance to photography and even delivery of goods.
But the increasing use of drones brings with it certain challenges…
In particular, the existing regulatory landscape for drones incorporates a range of different laws, largely drafted before the real emergence of the technology. Therefore, these laws may not be sufficient to deal with some of the specific issues drone technology can raise. Such regulatory uncertainty can be challenging for consumers and businesses alike.
In light of the recent changes to drone laws which took effect from late September (which have been covered in detail by Corrs here), it seems timely to examine some of the potential issues with the existing regulatory landscape and look at some of the considerations that organisations (and individuals) will need to bear in mind in their use of drones; in particular, relating to privacy and copyright.
Drone use and potential privacy issues
While some of the prescribed operating conditions in the CAS Regulations may indirectly operate to protect the privacy of individuals (for example, the requirement to keep an RPA at least 30 metres away from other people), this legislation was designed to govern the use of drones from an aviation safety perspective. There are no specific provisions targeted at protecting privacy.
Australia’s existing privacy regime is quite complex, with a range of State/Territory and Federal laws in place. One of the main instruments protecting the privacy of individuals in Australia is the Privacy Act 1988 (Cth) (Privacy Act), which applies to the private sector.
Growing concern is being expressed about the potential for drones to pose a threat to individuals’ privacy (whether inadvertently or intentionally) and one of the biggest criticisms of the existing privacy regime is that it would not provide adequate recourse in a number of circumstances for individuals whose privacy has been interfered with by drones. In large part, this may be due to the fact that the existing privacy legislation was drafted prior to the emergence of drone technology, and therefore hasn’t been designed with the issues in mind that it may raise.
One of the key issues with existing privacy laws is that they contain a number of exemptions for individuals and some companies. For example, the ‘small business’ exception in the Privacy Act exempts businesses with an annual turnover of less than $3 million from complying with its provisions. Because, in practice, many drones will be operated by individuals or ‘small businesses’ (within the meaning of the Privacy Act), exemptions such as this mean there are significant gaps in privacy laws when it comes to the regulation of drones. That being said, in certain circumstances, other laws (such as surveillance devices legislation) may provide protections, for example in relation to the use of drones to record private conversations.
Given some of these potentially significant gaps in the existing privacy regime, the government continues to face pressure to introduce legislation designed to address invasions of privacy that are not dealt with under existing laws.
The Australian Law Reform Commission previously conducted an inquiry into ‘serious invasions of privacy in the digital era’ and proposed the introduction of a tort for serious invasions of privacy. This tort was recommended to cover intentional or reckless invasions of privacy where the affected person has a reasonable expectation of privacy. Although not introduced, such a tort could have significant impacts for companies (and individuals) operating drones – so watch this space!
Drone use and potential copyright issues
An important consideration for businesses looking to use drones as part of their business activities relates to copyright in the footage and other materials captured by drones.
Take for example a scenario in which a real estate agency uses a drone to take aerial photographs of a property which is to be listed for sale, with the intention of using the photographs online to advertise the property. In such a scenario, questions may arise as to who in fact owns copyright in the photographs that have been captured.
If the person operating the drone (and the attached camera) was an employee of the real estate agency, this may be relatively straightforward to determine. This would particularly be the case if the person’s employment contract explicitly stated that all intellectual property rights created in the course of their employment will be assigned to the employer (ie the real estate agency).
However, if the photographs were captured by a third party drone operator and the issue of IP ownership had not been addressed in their contract, then the real estate agency may not in fact own copyright in the relevant images and would likely be prevented from using the photographs more broadly without consent.
So what can you take away from this?
Businesses and individuals wishing to use drones should ensure that they are familiar with the rules applying to their use – both specific drone regulations and incidentally applicable laws such as privacy and copyright legislation. The regulatory regime surrounding this new technology is complex and in some cases uncertain. This can give rise to challenges, particularly for companies wishing to integrate drones into their day-to-day business activities – so be wary out there.