JOHANNESBURG - Although drones brought resplendent and very practical benefits they can easily be misused, as is evident from the incident in December 2018 when Gatwick Airport was shut down for almost three days by a drone flying in restricted airspace.
It is astounding how a relatively small, customised drone could bring one of the UK’s busiest airports to a standstill. What is even more surprising is that the perpetrator(s) eluded a search conducted by 20 units from two police forces.
Even the deployment of the army with some sophisticated equipment did not help. The authorities had to scramble for counter-drone technology. This warrants the question of how to handle a drone that is not adhering to the law and is flying in your private space, or even worse, spying or peeping through your bedroom or bathroom windows.
Our first instinct may be to shoot down the drone invading our privacy or creating a constant nuisance. But if a private drone invades your privacy be careful to just shoot it down as was done by some aggrieved property owners in South Africa.
Drone operators are expected to respect people’s privacy just like photographers do. That entails that if you are walking on the beach they may take a picture of the beach that includes you, but they may not harass you and invade your reasonable expectation of privacy.
According to attorneys Jonathan Ripley-Evans and Elizabeth Sonnekus from Cliffe Dekker Hofmeyr (CDH), South African common law states that the owner of any fixed property is basically the owner of the “ground beneath and air above” such properties. Therefore, according to common law, the law of trespassing in airspace above private property would appear, at least in theory, to be illegal. Aircraft, however, is according to Section 8 of the Civil Aviation Act indemnified when flying over private property at a “reasonable height”.
The 8th Amendment to the Civil Aviation Regulations that was introduced in 2015 governs in Part 101 the operation of Remotely Piloted Aircraft Systems (including drones). Interestingly, Part 101 does not include any reference to any form of indemnification against a claim of trespassing as in Section 8 of the Aviation Act.
While several restrictions are placed on the operation of drones, such as the restriction not to fly a drone within a lateral distance of 50metres of any structure, building or person without permission, this does not address the question of trespassing. It is quite possible that a drone can fly more than 50metres from any structure or building, but still be trespassing on somebody’s property if flying without permission of the owner.
But assuming that flying a drone over private property may constitute trespassing by the drone operator, you may not shoot the drone from the sky, nor may you interfere with the signal to bring it down. This would constitute taking the law into your own hands.
In terms of Section 120(7) of the Firearms Control Act, the discharge of a firearm in any built-up place or public area is a criminal offence. And if the drone is damaged by the use of a firearm, civil liability or the potential responsibility for payment of damages in a lawsuit may follow.
But what can be done if the operator of a drone infringes on your rights? The first recourse is to lay a complaint with the Civil Aviation Authority based on a breach of the Aviation Act Regulations. It is recommended to take a picture of the drone with your cellphone for later identification purposes.
According to CDH, the Civil Aviation Authority appears to be taking matters rather seriously and has initiated a number of investigations against drone operators in recent months. Drone operators transgressing the law could be fined up to R50000 per incident or could be imprisoned for not more than 10 years, or both.
If the operator is known, one could also resort to the courts in an attempt to enforce a civil claim against the perpetrator, based on the law of trespassing or alternatively an invasion of privacy. Unfortunately, civil litigation is usually time consuming and therefore very expensive.
The matter becomes more complex when it is not clear who the drone operator is. In this case the legal remedies are extremely limited. CDH makes an interesting suggestion, namely that the regulations be amended in accordance with developments in other countries.
The amendment should make it compulsory for every drone operator to display a unique registered identification number on the underside of a drone that is visible from the ground.
If recreational and commercial drones can easily be identified as in the case of aircraft, it will promote accountability and will provide any aggrieved person with a way to trace the offending operator or owner.
Until such amendment of the law, you will just have to grin and bear it, besides reporting it to the Civil Aviation Authority when the drone operator is unknown.
Professor Louis Fourie is the deputy vice-chancellor: knowledge & information technology - Cape Peninsula University of Technology.