Shots fired in the drone community

After picking up what was left of his flying (or spying) machine, David Boggs laid a criminal charge against Merideth. Merideth was then arrested for “wanton endangerment and criminal mischief”. The charges were ultimately dismissed by the Bullitt County District Court. Judge Rebecca Ward found that Merideth was entitled to shoot down the drone as it infringed upon his (or his daughter’s) right to privacy. 

Having lost round one, Boggs initiated proceedings to have the decision overturned seeking clarity on whether his conduct constituted trespassing and further sought an order directing Merideth to pay an amount of $1,500 in compensation for his damaged property.

In March 2017, Federal Judge Thomas Russel dismissed Boggs’ lawsuit due to the Federal Court lacking jurisdiction to hear the matter. The ruling was met with disappointment as the questions of law – regarding the right to privacy, the right to property and trespass in airspace – remained unresolved. 

South Africa has already encountered incidents where drones have been shot down by aggrieved property owners. The natural question: Does the Drone Slayer litigation have any relevance in a South African context?

In accordance with the South African common law, the owner of immovable property is essentially the owner of the “ground beneath and air above” such property. Therefore, at common law the delict of trespassing into air space above private property would appear, in theory, to be actionable. 

However, s8 of the Civil Aviation Act, No 13 of 2009 (Aviation Act) provides a form of indemnification protecting the operators of aircraft flying over private property at a “reasonable” height. While this provision was introduced prior to the emergence of drones into South African culture, it is clear that insofar as an aircraft is flying in contravention of the provisions of the Aviation Act (or flying at an unreasonable height), the pilot may very well attract liability for trespassing. That is the theory at least.

The Eighth Amendment to the Civil Aviation Regulations was introduced in 2015 and governs, in Part 101, the operation of Remotely Piloted Aircraft Systems (including drones). There is, however, no reference to any form of indemnification against a claim of trespass (as is found in s8 of the Aviation Act). 

While restrictions are placed on the operation of drones (such as the restriction not to fly a drone within lateral distance of 50m of any structure or building without permission of the owner), this does not address the question of trespassing. It is conceivable that a drone can fly in excess of 50m from any structure or building but still be trespassing on another’s property (if flying without permission). 

Assuming that flying a drone over a private property may constitute trespassing, can the owner of the property use a firearm to protect his rights? The simple answer: no. In terms of s120(7) of the Firearms Control Act, No 60 of 2000, the discharge of a firearm in any built-up place or public area is a criminal offence. The discharge of a firearm on private property in a manner which endangers the life, safety or property of another is also an offence and insofar as a drone is damaged by the use of firearm, civil liability may follow. 

The real question is then, what can one do if they feel that their rights are infringed by the operation of a drone? Well, one may resort to the courts in an attempt to enforce a civil claim against the pesky pilot, based in delict for trespassing or alternatively an invasion of privacy (insofar as the requirements are made). Civil litigation is, however, expensive and time consuming. More practical advice may be to lay a complaint with the South African Civil Aviation Authority based on a breach of the Aviation Act or Regulations.

The Civil Aviation Authority appears to be taking matters rather seriously and has initiated a number of investigations against drone operators in recent months. Sanctions include fines of up to R50,000 per incident or imprisonment not exceeding 10 years, or both. 

Turning to the elephant in the room: what if you have no idea who the operator of the drone is? In this case, your legal remedies are extremely limited insofar as they exist at all. 

In an effort to address this problem, we suggest that the regulations be amended in accordance with developments in other jurisdictions, which oblige every drone operator to display a unique identification number on the underside of a drone which is to be visible from the ground. This will promote further accountability and will provide any aggrieved person with a mechanism to trace the offending owner.

Until this happens, the moment the familiar buzz of a drone is heard one should either cover up or go indoors.