Application of New Zealand Privacy Law to Drones

13 May 2016

An Australian woman discovered that real estate advertisements,
including a large billboard, carried an image of her sunbathing in her
backyard. Would New Zealand privacy law provide adequate
protection?
Source: “Mt Martha woman snapped sunbaking in g-string by real
estate drone”, Herald Sun, 17 November 2014
.
New Zealand privacy law encompasses the torts of wrongful publication of private facts and intrusion on seclusion, the Privacy Act 1993, and various provisions in the Crimes Act 1961 and the Summary Offences Act 1981. The privacy torts set a high threshold, requiring a privacy violation to be “highly offensive”, a test that is highly dependent on the circumstances of the individual case. There is considerable uncertainty over whether the privacy torts provide any effective cause of action against privacy violations by drone.

The Privacy Act creates an offence of an “interference with privacy”. One of the most likely causes of an interference with privacy involving drones is that personal information has been “collected by means that, in the circumstances of the case … intrude to an unreasonable extent upon the personal affairs of the individual concerned”.

The Privacy Act appears to provide an avenue for redress for a person who believes that they have suffered a privacy violation, but there are significant hurdles to overcome. Two particular problems are:
  • The victim may not be able to see the pilot, and there are unlikely to be any identifying characteristics on the drone, meaning that it will be very difficult to hold a specific individual accountable.
  • In a test case in 2015, the Privacy Commissioner held that if a drone is not recording then there is no information collected, so no information privacy principle can be violated and there is no interference with privacy.
There are sufficient uncertainties in the application of the current body of tort and statute that a person upset by unwelcome surveillance cannot be sure of an acceptable resolution, even when that surveillance takes place in a location where they have a reasonable expectation of privacy.

New Zealand’s current privacy framework requires clarification to better accommodate the challenges posed by drones. Some of the modifications could potentially be achieved by way of a code of practice issued under the Privacy Act, which may provide a relatively low-cost means of setting the standard of acceptable behaviour. Challenges will still remain because the characteristics of drone technology make it difficult to identify the operator, which in turn makes it difficult to obtain any legal remedy. Such challenges may mean that in some instances an alternative, more direct means of intervening to protect one’s right to privacy would be efficient.

Source:
This article summarises key aspects of the recent paper:
Shelley, Andrew (2016) “Application of New Zealand Privacy Law to Drones”, Policy Quarterly, 12(2):73-79, May.

A copy of the full paper can be downloaded from the Policy Quarterly website or Andrew’s author page on SSRN.