March 2018
Our clients regularly present us with novel situations (the spice of life is always welcome!). Some of these involve the law around rapid advances in technology and the consumerism that follows. With such change, we find ourselves researching an ever-evolving range of laws that have been developed to meet the new world. Think cyberspace and social media.
One relatively new issue is the legal usage rights and obligations surrounding ‘Unmanned Aerial Vehicles’, aka DRONES.
Drones are not new. In fact, crude manifestations of the modern device were being used as part of the war kit over 100 years ago. However, 21st century technology has led to such terrific advancements in their development that they are now used commonly for business and leisure purposes. And their popularity is ever rising, with their capabilities and reduction in cost.
Whether an operator wishes to take drone photos to advertise a property for sale, access difficult terrain on farm land, take photographs as a hobby, or whether people are concerned about pesky neighbours spying on nude sun-bathing, and issues of safe operation, privacy and property law must be considered.
Given the number of drones being used in New Zealand and to avoid injury and harm, the law has stepped in to provide a framework of control.
In 2015 a new set of rules were implemented under the Civil Aviation Act 1990 that apply to all drone operators (CAA rules). Although no license is required, anyone operating a drone must be informed and understand the key requirements of these rules.
Thankfully the rules are user-friendly and spell out clearly what an operator’s obligations are. For most business and individual users, the rules restrict operation to such matters as keeping the drone within eye contact, flying below 120 metres, not flying within 4km of an uncontrolled aerodrome, and the prohibition on flying at night. Significant too is the requirement for operators to obtain consent from any property owner whose property it is intended to fly over. Should an operator wish to go beyond these rules, official certification should be applied for. Operators can be, and have been, prosecuted for failing to obtain certification when that was required.
And the CAA rules are not the end of the story. Outside of the CAA rules, clients may be surprised to learn of the number of other areas of the law which could potentially come into play. Laws relating to trespass, nuisance, privacy, harassment, peeping, and intimate covert filming to name a few.
The message for drone users is straightforward. Firstly, read and understand the CAA rules. Second, common sense generally prevails. For instance, having a simple chat to the neighbours or anyone that the drone is flying over is likely to be more beneficial than arguing legal grounds with a disgruntled homeowner or member of the public at a later point in time. You may find that most are inquisitive and become genuinely interested in the drone operations. Additionally, for user friendly advice, airshare.co.nz is a valuable resource. Operators are quickly able to check the flying zone category in the intended area of operation, and whether restrictions apply.
According to a report by the CAA’s regulatory investigations’ unit, during the 2016-17 period, 10 enforcement investigations were completed. This resulted in 5 infringement notices being issued. This number seems low, and it is difficult to assess whether this is due to a high degree of responsibility generally among drone operators, or that most breaches have inconsequential impact. However, one would expect that incidents such as happened at Auckland Airport late last year, which saw a drone operator interfering with the approach of an incoming flight, would lead to close scrutiny by the CAA.