Private drone use needs federal safety, privacy laws, says professor

Professor Julie-Ann Tarr has called for law reform around personal drone use, due to novel violations and disturbances posed by increasing drone usage.

Jess Feyder • 22 July 2022 • Big Law

Professor Tarr is co-author of the newly published Drone Law and Policy: Global Development, Risks, Regulation and Insurance and is in the faculty of business and law at the Queensland University of Technology. She implores the Queensland government and governments around the nation to reconstitute federal safety and privacy laws and implement regulation to address private drone use.

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People are becoming increasingly vulnerable to privacy violations, disturbances, surveillance, accidents, intrusions, and even stalking breaches, she stated, and there is minimal legislation protecting people when it comes to drone use.

“Australians’ protection against privacy breaches by drones invading their home air space are limited and vary across states,” said Professor Tarr.

“The Federal Privacy Act is usually the first law people think of. It is, however, directed at businesses over $3 million and government agencies and is largely inapplicable in private drone ‘invasions’.

“Surveillance, noise and even stalking laws are inconsistent across Australia. In Queensland, for example, the state’s dated 1971 surveillance legislation does not address optical invasion of home air space.”

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There are laws that are used against privacy invasions, including federal, state and territory legislation around trespass, nuisance, data collection, surveillance, and to a limited extent, criminal stalking laws. Though in the case of a neighbour’s noisy drone flying over your property, or in the case of an abusive former partner menacing you with a camera-enabled drone, there are not many legal avenues to protect you, she stated.

The issue of drone noise pollution is a rising concern with the forecast that drones will be used for future delivery schemes. Professor Tarr outlined the legal arguments commonly applied to drone use that is tantamount to harassment:

Nuisance laws – council, state and federal regulations vary as to acceptable volume, character, timing and number of people being impacted by noise — these laws are not always effective, considering a drone makes less noise than a lawnmower.
Trespass laws – these are often not an option if the drone or operator isn’t physically on your land.
Invasion of privacy laws – these provide little protection from privately owned drones unless they are directly focusing on “private” areas such as bedrooms, bathrooms and changing rooms.
Some surveillance-oriented laws, such as Queensland’s Invasion of Privacy Act 1971, may create an indirect remedy for a drone that has audio recording capacity, but are otherwise toothless against this technology.

Professor Tarr said that for the domestic violence survivor who looks up and sees a drone flying overhead, help from stalking laws might be limited. “Stalking laws vary from state to state with each legislative provision having very specific requirements for proof,” she said.

“A drone operated to oversee or track a family member may indeed contravene anti-stalking legislation but it would need to meet the relevant burden of proof, and be able to be tied to the offender,” she said. “Given the way drones move and the difficulties identifying ownership of airborne drones, this could be challenging.

“Again, state legislation varies but generally keeping a person ‘under surveillance or watching a person’ requires multiple incidents or patterns.

“Most statutes require proof of intent to intimidate and of ‘causing physical or mental harm to, or of arousing an apprehension or fear in’ the person being stalked.

“In all situations though, the real challenge is the practical one of tracing a drone hovering on your property to its operator.”

We must address the patchwork legal landscape that currently permits unnecessary risk, she stated; Australia needs to reconstitute national safety and privacy legislation to address the burgeoning use of drones by government, corporate and private citizens.

“Apart from implementing standardised safety, privacy and data protection laws, we need better ways of tracking drones, third party insurance for drone operators and for owners who injure innocent third parties, along with the legal requirement to keep an activity log,” she said.

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