In brief - More drone regulation around time, place and manner of operation expected
While businesses and governments increasingly see the value in collecting information by drones, the issue of privacy and the public's ability to limit the collection of personal and sensitive information remain hot topics. Regulation and legislation impose limits and requirements on drone use in Australia and further regulation is expected.
Data capture by drones for commercial or other non-public safety purposes remains contentious
Drones, or remotely piloted aircraft (RPA) as they are officially called in Australia, are being used more extensively in Australia and receiving more media coverage. Drones are unmanned aircraft which are operated by a human but remotely.
Over the past few years, drones have become cheaper to obtain and easier to operate. Improvements in drone operational functions, including increased range, and the inclusions of more commercial functions, including high resolution photography and audio and thermal data to capture commercially valuable information, have created a surge in demand for information collected by drones for a wide range of businesses and government agencies.
Drones are increasingly used to provide valuable low-cost information to public agencies, including surveillance of remote areas and public safety, such as flood, fire, surf patrol and traffic management.
However, while the general public has been watched by closed circuit and other remote security cameras and sensors for years without (much) protest, there seems to be something fundamentally different about data capture from moving aircraft for commercial purposes or purposes not strictly related to public safety and crime prevention.
How are drones and their operation currently regulated and what might change in the future?
Civil Aviation Safety Authority imposes licensing requirements and time and location restrictions
The Australian Civil Aviation Safety Authority (CASA) regulates the operation of drones. Regulations currently impose licensing requirements for most drone use, including safety and equipment standards. CASA regulations impose limits on when and where drones can operate, amongst other factors.
A license is generally required for operation of a drone for commercial purposes. Purely recreational or hobby use of a drone does not yet require a license.
Drone operators must comply with time and location restrictions. In general, operation of drones over populated areas (city centres), sports events and beaches is prohibited or subject to strict regulation. Night time operation is generally prohibited. Flying altitude is also strictly regulated.
Commercial use of personal and sensitive information requires consent
The collection of information is regulated in Australia through a variety of laws. This legislation applies to any data collected through operation of drones.
Privacy legislation applies to the collection of personally identifiable information and other sensitive information. Personally identifiable information is information which can identify a specific person. Sensitive information includes health, financial, racial, sexual and other information which may or may not also be personally identifiable information.
Where personal and sensitive information is collected for commercial purposes, privacy legislation requires that the subject of that information understand the purposes for which the information is collected and may be used, and consent to its collection and use.
Data collected that includes personally identifiable information or sensitive information where the donor has not consented to its collection, can, in some cases, be made anonymous through deletion of the personally identifiable information (an example would be pixelisation or blurring of identifying features, such as faces, house numbers, registration plates etc.).
Collection and commercial use of information that is not personally identifiable information and other sensitive information is not subject to privacy regulation.
Stalking, harassment and arming drones prohibited
Criminal and other legislation prohibits the use of drones and other devices for stalking and harassing third parties. It is possible that the use of drone technology could breach these laws, even if that drone is not equipped with data collection functionality. As an example, harassment claims can arise if a drone operates too close to private property without the property owner's consent.
Use of drones configured with any sort of weapon capacity (such as guns) remains strictly prohibited.
Drone operators should expect further regulation
We expect that CASA and other authorities will act to further confirm time, place and manner of operation regulations on drone operators. The public's ability to limit and to stop the collection and publication of personally identifiable information and other sensitive information will remain a hot topic for media and legislative review.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.