26 sUAS Guide / Q3 Update, October 2016
Section 30 of the Summary Offences Act 1981 creates an offence punishable by a fine of not more than $500 for ‘peeping or peering into a dwelling house’ at night. The offences of interception of private communications and peeping or peering into a dwelling house are additional to the actions available in tort,9 but in general would be of little help to those concerned about an unwanted drone hovering over their house or property because in most instances a drone will be gathering imagery rather than intercepting communications, and significant surveillance can be conducted without peeping into a house at night.
Discussion
People are generally concerned about their right to privacy, and unwelcome surveillance both impinges on this right and generates a range of emotions and changes in behaviour that can rightly be characterised as economic costs. The appropriate place to address issues of privacy and unwelcome surveillance lies within privacy law.
New Zealand’s privacy torts require the publication or recording of information to be ‘highly offensive’, a threshold that is unclear for observation of people undertaking normal activities in their backyards. The Privacy Act provides an alternative cause of action for an ‘interference with privacy’. Imagery collected over time by CCTV of private front and backyards has been held to intrude to an unreasonable extent on privacy, and thus constitute an interference with privacy, but it is unclear whether a single drone flight collecting the same imagery would necessarily constitute an unreasonable intrusion.
It is generally accepted that one ‘can take and/or publish photos or film of people where there is no expectation of privacy, such as a beach, shopping mall, park or other public place’ (New Zealand Police, 2016). However, Moreham suggests that the expectation of privacy in public places is a matter of degree, such that an individual will choose how much of themselves to reveal in any given public place, and ‘because it is always possible to disseminate an image of a person to a much wider audience than the one to which he or she was exposed’ (Moreham, 2006). There may, therefore, be circumstances in which drone imagery obtained in a public place may violate a reasonable expectation of privacy.
A significant difficulty also arises in identifying the pilot of a drone (Aldworth, 2014). Manned aircraft are required to have prominently displayed registration marks, or an approved and readily identifiable paint scheme, and are large enough that visible markings can be easily identified. A drone, on the other hand, may be a generic off-the-shelf model that looks exactly the same as every other drone of that model, with no unique identifying marks that are readily visible. While regulation could require that a drone has some sort of registration marking, such regulations could be ignored almost with impunity. Furthermore, even if a drone has a registration marking, the small size of the craft means that the registration marking will necessarily be small, inhibiting identification. The pilot may also not be visible to the occupier of the property, particularly if flying using first-person view.
Two additional problems arise that reduce the expected damages cost to the drone operator. The first problem is one of asymmetric information: the potential victim does not know whether they are being recorded, which raises uncertainty over whether it is worth the cost of initiating an action or making a complaint to the privacy commissioner, particularly as the privacy commissioner has held that if a drone is not recording then there is no information collected, so no information privacy principle can be violated (Privacy Commissioner, 2015). The second problem is that there is no guaranteed cause of action. An intrusion into seclusion must be highly offensive for an action in tort, and yet the boundary of that standard is undefined; an intrusion into seclusion must also be intentional, and the drone operator always has the opportunity to argue that
any intrusion was unintentional or negligent. Similarly, an ‘interference with privacy’ requires the drone to have intruded to an unreasonable extent in the collection of personal information, and again relies on asymmetric information about whether information was even collected.
Faced with such uncertainties, a smaller proportion of cases will be pursued than would be the case if there were certainty about the filming, and some of the cases that are pursued will fail. As discussed earlier, the probability of identifying the pilot is also very low. As a consequence of these factors, the expected damages cost borne by the drone operator will be a small fraction of the harm caused, and the drone operator will accordingly exercise insufficient care to avoid privacy violations. This can only be an efficient outcome if the cost of reducing or eliminating the uncertainty is very high and there are no other options for protecting privacy, such as destruction of the offending drone (for a discussion of the potential use of ‘violent