Summary

The activities of an unauthorised stranger, using drone technology to capture high quality footage of major sporting contests or entertainment events, could adversely impact the funding models for major sports.

For less mainstream sports that don’t currently receive any live coverage (television or via the Internet), drones will provide the opportunity to showcase their product via live streaming facilities and potentially open new revenue sources.

Background

There was a famous legal case in Australia in the 1930s – Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 – in which the High Court found that sports and entertainment providers that put on events for public consumption had no inherent right in the ‘spectacle’ that would allow them to regulate the activities of people outside of their venue.

In that case, a race caller was stationed on an adjoining property and providing unsanctioned commentary on horse races taking place at the race course. Even though the race caller’s activities materially impacted the race club’s revenues, the High Court rejected the club’s argument that they had a proprietary right in the spectacle conducted on the land.

In the early 21st century, sporting and entertainment bodies are less concerned about someone describing what is happening at a venue, as was the case in Victoria Park Racing. Rather, valuable revenue streams in the form of lucrative broadcast agreements are vulnerable to disruption from technological advances and the unauthorised activities of people operating outside of a venue.

Conversely, for the promoters of fringe spectacles and suburban contests that are currently seen by the few people physically in attendance, the availability of improving and cost-effective technologies will allow those events to be broadcast to a much wider audience.

Remotely piloted aircraft (i.e. drones) are at the forefront of this technological change.

No longer the exclusive preserve of wealthy hobbyists or commercial operators, enhanced technology and improved affordability has meant that drones have become available to the mainstream. The Civil Aviation Safety Authority (CASA) – the body responsible for drone regulation in Australia – estimates that there are over 50,000 recreational drone pilots, and close to 1,000 commercial drone pilots, in Australia. The Federal Aviation Administration (FAA) anticipates there will be over seven million drones in the United States by 2020.

Drones have already had a significant impact:

a. The footage that can be captured from drones is undeniably spectacular. Drones can take vision of places that were previously inaccessible to humans or that were cost prohibitive to obtain.

b. Drones are helping to keep our beaches safe – acting as a surveillance tool to monitor any sharks passing by or swimmers in distress. On 18 January 2018, a drone was used to drop inflatable life rafts to two swimmers in distress in northern New South Wales.

c. In Australia’s vast agriculture industry, drones deliver time and cost savings by taking footage that can be used to check on stock and feed levels and the adequacy of property fencing and weed control measures.

For sporting contests, drones give fans a chance to see a unique and a sometimes-improved spectacle compared to traditional camera angles. Helicopters have historically been used to obtain aerial footage – however the costs of hiring a helicopter to cover an event mean that it is only justifiable in limited circumstances. And the footage from helicopters is arguably inferior to what can be provided by drones.

In the football codes, aerial footage allows commentators to dissect plays and highlight deficiencies in a team’s defence that lead to points being scored by an opponent. In horse racing, aerial footage gives fans a much better perspective on the speed of one horse relative to another, and the impacts of any interference suffered by a horse during a race.

Drones that could access sporting or entertainment precincts – whether on the property or adjacent to it – already have the capability of capturing high quality, high value vision of the events taking place at those locations. With further technological improvements, drones will be able to obtain even better footage, and transmit it live to a worldwide audience, more affordably than existing technology allows.

For most sports, broadcast revenue is their principal source of funding. Sporting programs dominate the list of most watched television programs in Australia – State of Origin and the Grand Final in rugby league, the Grand Final in the AFL, and the Melbourne Cup in horse racing.

For major sporting codes with valuable broadcast agreements, the activities of an unauthorised stranger using drone technology to capture high quality footage, could undermine the value of the agreements and impact the funding models for those sports.

Do any laws exist that allow sporting or entertainment bodies to protect themselves from unauthorised footage being obtained?

Terms and conditions of entry

Sporting bodies and entertainment providers can regulate the conduct of patrons on their facility under the terms and conditions of entry. This would allow them to sanction anyone who obtained footage without permission, if the person was on the venue.

However, if someone who is capturing unauthorised footage is not physically located on the property of a sporting or entertainment body (as in the Victoria Park Racing case), those bodies must look at other avenues to prevent unauthorised footage being obtained.

Privacy laws

The Commonwealth and state based privacy frameworks are unlikely to offer any meaningful protection.

The Privacy Act 1988 (Cth) generally only applies to government agencies or organisations with an annual turnover of $3M or more – which would not apply to the vast majority of the circa 50,000 drone pilots operating in Australia. The Privacy Act 1988 (Cth) exists to regulate the use of ‘personal information’ by government agencies and large corporations, meaning no protections are likely to apply to footage being obtained of a sporting or entertainment contest.

In Queensland, for example, the Invasion of Privacy Act 1971 (Qld) only applies to regulate the use of listening devices that ‘overhear, record, monitor or listen to’ a private conversation. Footage captured by a drone would not fall within the scope of the legislation.

Tort of trespass

Trespass will occur if a drone operator’s activities prevent the ordinary use and enjoyment of someone’s land.

A drone being flown across a sporting or entertainment precinct to capture unauthorised footage is likely to be regarded as trespass where the conduct was ongoing and materially impacted on the body’s revenues.

If the yield (commercial broadcast revenues) that could ordinarily be derived from land was materially reduced by the drone’s activities, a landowner would have a good argument that their ordinary use and enjoyment of the land was curtailed.

However, if the drone was hovering on an adjoining property with a camera pointed towards the sporting contest or entertainment event taking place, a landowner would be unable to rely on trespass.

Tort of nuisance

There is currently no case authority in Australia to have considered whether the activities of a drone – and their impact on the enjoyment of private property by a landowner – would amount to nuisance.

A landowner whose privacy has been impacted through ongoing harassment is likely to be protected, if the activities could be seen to be a frequent and unreasonable occurrence.

However, it will be difficult for sporting and entertainment bodies to rely on invasion of privacy arguments to regulate the conduct of people operating outside of their venue (given sporting and entertainment events are ultimately put on for public consumption).

One potential avenue would be to demonstrate that a drone operator’s activities on a neighbouring property carried a safety risk (due to the possibility of the drone distracting the animals or the jockeys competing in an event, or a spectator being injured by a drone crash on the way to an event).

However, unless a safety risk could be demonstrated, it will be difficult for sporting and entertainment bodies to sustain a nuisance claim against an operator capturing footage from outside of a venue.

Safety – CASA

There are some avenues of protection for sporting and entertainment bodies that arise through safety concerns.

Drone crashes – either through operator error or technology failure – can cause serious injury and damage to property.

CASA has introduced stringent rules to address the potential safety risks.

CASA has been proactive in regulating the use of drones from a safety perspective. Throughout 2017, CASA issued 20 aviation infringement notices to people who breached drone safety rules. Penalties of up to $10,500 can apply to drone operators who breach CASA’s regulations.

By its own contention, CASA does not concern itself with (and has no jurisdiction over) any privacy breaches or complaints arising from the operation of a drone.

A drone cannot be flown for commercial reward unless the drone pilot has obtained the requisite licence and authorisation from CASA. ‘Commercial reward’ will be interpreted

idely and could, for example, include capturing footage and uploading it to YouTube.

Recreational drone pilots do not need to be licensed by CASA – however, they do need to comply with CASA’s recreational drone safety rules, which require that drones:

a. can only be operated within the drone pilot’s line of sight;

b. cannot be flown within 30 metres of people;

c. cannot be operated over a ‘populous area’ – which is an area that has a sufficient density of population to pose an unreasonable risk to the life, safety or property of somebody in the area if a fault were to occur during the operation of the drone;

d. cannot be operated in an area of a public safety or emergency operation;

e. cannot fly higher than 120 metres above ground or water level, or within 5.5 kilometres of an airport; and

f. cannot be flown at night, or in fog or cloud. Practically speaking, this means that it would be difficult for a drone to be lawfully flown near major sporting venues in CBD venues (such as the MCG, Etihad, the Sydney Football Stadium, Suncorp Stadium, Optus Stadium and the like) due to their location in ‘populous areas’.

However, many other venues that feature sporting or entertainment contests (such as race courses, motor racing circuits, suburban sporting facilities and public areas) are surrounded by public land or private dwellings. Those venues are vulnerable to unauthorised footage being obtained.

Overseas developments

In the United States, the authorities have enacted regulations that prevent the use of drones during major sporting events.

The American Federal Aviation Administration notes that:

Federal law restricts UAS from flying at or below 3,000 feet above ground level within a 3-nautical mile radius of any stadium with a seating capacity of 30,000 or more people during a Major League Baseball game, a regular or post-season National Football League game, a NCAA Division 1 football game or a major motor speedway event. The flight restriction takes effect one hour before the scheduled event time until one hour after the event concludes.

The 3-nautical mile radius, as well as preserving the safety of fans, also ensures that no unauthorised broadcast could take place.

This is similar to the Restricted Airspace Zones concept in Australia, where exclusion zones are enacted as a security measure for high profile events (for example, the 2018 Commonwealth Games on the Gold Coast).

Government reviews

The Australian federal government, in December 2016, considered (and opted against) introducing legislation to introduce a separate tort of privacy, on the basis that it is contrary to the government’s commitment to reducing red tape.

State governments are also balancing the wide ranging economic benefits that a thriving drone industry can provide, against any concerns held by the public from a privacy or safety perspective.

For example, the Queensland Government released a Drones Strategy on how Queensland can take advantage of the opportunities in the drone industry, which closed for public consultation on 6 October 2017.

Where does it leave sporting and entertainment bodies – for high value sports (exposed) and for less mainstream sports (new revenue opportunities)

The combination of the high value of broadcast contracts to sporting bodies, the improving quality footage that drones can take, the lack of recourse available to sporting and entertainment bodies from strangers obtaining drone footage from adjoining properties, and the failed past attempts by sporting bodies to establish legal rights in the spectacle of sporting contests, leaves sporting and entertainment bodies vulnerable to increased drone usage and technology disruption.

The CASA rules that regulate drone flights over populous areas and require pilots to be accredited before they undertake any work for commercial reward provide a layer of protection – however there is nothing that would currently stop a pilot from capturing high value footage, provided the drone was flown over neighbouring property and away from crowds.

As drone and camera technology improve, there is the potential in some cases to erode the value of broadcast agreements and deplete revenue and funding avenues.

Sporting bodies have previously agitated – unsuccessfully – for a change in copyright legislation to afford intellectual property rights to the organisers of sporting contests.

These bodies will therefore need to be proactive in assessing the potential impacts of technological advances and the likely impacts on precious revenue streams. They can also insist on their broadcast partners using the best available technology as part of their coverage of events so that any unauthorised footage is inferior to the sanctioned footage.

A great example is the partnership that the NBA has recently entered with Turner Sports and Intel that will allow fans to experience the thrill of sitting courtside at a basketball game using virtual reality technology. This will allow the NBA to give its global audience (many of whom will have never seen an NBA game live) a chance to be a spectator from the comfort of their homes – leading to increased audience engagement, a competitive advantage against other entertainment offerings, and new revenue opportunities.

For less mainstream sports or events, which do not currently receive significant broadcast coverage, improving drone and live streaming technologies will provide an opportunity for those sports to be broadcast to a worldwide audience that may lead to new revenue streams – think advertising and with a stringent integrity framework in place, wagering.