This is the era of drone technology. Drones have become a useful tool for tracking and surveying, particularly for the emergency response, animal protection, security, and journalism industries, note Karabo Mokgonyana, candidate attorney, and Moray Hathorn, consultant at Webber Wentzel.
They are also becoming popular with private users to make videos or even survey an area. However, if private users do not use them within the bounds of the law, they could face serious prosecution. For example, an individual who sends a drone over another person’s house is disregarding the privacy rights of that person.
Drone laws and regulations in South Africa are closely modelled on existing aviation law, which distinguishes between commercial, corporate, non-profit, and private operations of Remotely Piloted Aircraft Systems (RPAS).
The South African Civil Aviation Authority (SACAA) is the agency responsible for drone safety and it regulates the legal and regulatory framework for the use of drones in South Africa.
According to the SACAA, RPAS are “an unmanned aircraft which is piloted from a remote pilot station, excluding model aircraft and toy aircraft”. This definition includes drones.
A 2011 amendment was enacted to the Civil Aviation Regulations of the Civil Aviation Act, 2009. Part 101 of those amendments, entitled ‘Remotely Piloted Aircraft Systems’, came into operation on 1 July 2015. This regulates the use of drones. Drones may be flown legally in South Africa, but certain regulations must be strictly followed, or individuals may face prosecution.
The SACAA defines private operation as “the use of an RPA for an individual’s personal and private purposes where there is no commercial outcome, interest or gain”.
It says the RPAS may only be used for personal and private purposes if there is no commercial outcome, interest, or gain. The pilot must observe all statutory requirements relating to liability, privacy, and any other laws enforceable by any other authorities.
For all other uses (i.e., commercial, corporate, and non-profit operations), RPAS must be registered and may only be operated in terms of Part 101 of the Civil Aviation Regulations.
Although private drone operators do not have to register their drones to operate them, they do have to observe all statutory requirements relating to liability, privacy, and any other laws enforceable by any other authorities.
In terms of Regulation 101.05.13 and 101.05.14 of the Civil Aviation Regulations Part 101, no RPAS shall be operated within a lateral distance of 50 meters of any people, structure or building unless the operator holds a remote operator certificate (ROC) and the operation has been approved by the Director in their operations manual or the necessary permissions or procedures are followed to ensure safety.
Failure to comply with these principles may result in the individuals being found guilty of gross negligence, i.e., a deliberate act of wrongdoing. They could face severe penalties based on the severity and likelihood of risk.
Constitution and Common Law: Right to Privacy
While internal statutory and regulatory limitations of the Civil Aviation Act play a part in protecting the person whose home is being surveyed with a drone, the private drone operator has a further responsibility to observe rules relating to the right to privacy of other people.
The first point of reference is section 14 of the Constitution of the Republic of South Africa, 1996 which provides for an express, justiciable right to privacy. It grants everyone the right to privacy, which includes a right not to have their person, home or property searched, their possessions seized, and their communication infringed.
In combination with the Constitutional principles, the common law right to privacy also gives effect to the practical application of the right to privacy. South African courts recognise a common law action for invasion of privacy under the broad principles of the actio injuriarum.
Actio injuriarum may be defined as “an intentional and wrongful interference with another’s right to seclusion in his [or her/their] private life”.
For a common law action for invasion of privacy based on the actio injuriarum to succeed, the plaintiff must prove the elements of wrongfulness, fault in the form of intention, and infringement of the plaintiff’s privacy. The main remedies for invasion of privacy at common law are damages and interdicts.
The old common law remedy of the right to privacy included retraction, apology, and reply, however it appears to have been abrogated by disuse. It could, however, be revived as ‘appropriate relief’ under the Constitution. Therefore, avoid using drones to spy on people because you infringe on their right to privacy and may face prosecution.
Private users, hobbyists, and illegal operators who are found guilty of infringement could be fined R5,000 to R42,000 for a first offence, and even face time in jail. Citizens, companies and even retailers could be found guilty of 20 criminal offences. At the top of the list is a charge code that holds drone retailers accountable for failing to inform consumers about South Africa’s drone laws when selling a drone.
- By Karabo Mokgonyana, Candidate Attorney & Moray Hathorn, Consultant at Webber Wentzel