As the popularity of drones rockets skywards, it is not surprising that more and more agencies and brands and turning to the use of drones in the filming and creation of ads.
To be clear, when we say drones we’re talking about these…
…and not these…
Many of us know or know of someone who has been buzzed by a drone in the sanctuary of their own backyard. Arguably, Australian authorities have so far failed to suitably respond to the increasingly widespread use of drones (or what they call ‘Remotely Piloted Aircraft’ or RPAs) and the concerns that arise out of their newfound popularity. As it stands, there remains in place a very strict set of rules around the use of these aircraft, especially in a commercial context.
The Civil Aviation Safety Authority (CASA) is aware of this issue and is conducting a necessary review of the Civil Aviation Safety Regulations. However, media reports suggest that the use of drones is becoming increasingly problematic for CASA, which actively investigates potential breaches of the regulations and has the power to issue penalties including substantial fines. They have even looked into handyman Scott Cam, over footage filmed on The Block!
To avoid getting into a tailspin over the rules and regulations, agencies that are thinking about using drones in filming, themselves or through a contractor, should be aware of the following key areas of potential liability.
The Civil Aviation Safety Regulations (CASR)
The CASR are a complex set of rules governing all aspects of civil aviation. For advertising agencies, the first step to avoid a potentially costly nosedive is to ensure that you have a licensed drone pilot to actually fly your aircraft. There is a rigorous set of requirements to obtain a licence and any drone pilot involved in commercial work must be approved by CASA (although this may be relaxed later in the year). Agencies should also ensure that they have appropriate checks and balances in their contract with the drone operator, including warranties that the operator complies with all applicable aviation regulations.
Before take-off, we also suggest that agencies ask themselves the following questions:
If you’re not sure about any of these questions, ask your drone operator. If you’re still not sure, we suggest that you get legal advice to help avoid a crash landing!
Like any risky activities, agencies should also be aware of potential liability under the common law of negligence. If it is found that the drone operator has a duty of care to another party (such as an onlooker), and the operator acts in breach of that duty, they may soon be facing a negligence action. This is particularly important for agencies who might be directing an employee or drone operator to fly the drone in a particular manner, as liability may, in some circumstances, also attach to the agency. Of course, public liability insurance is a must when operating drones for advertising purposes.
Privacy and drones is another a hot-button issue, especially when the drone has a camera attached. A federal government committee has even held a roundtable discussion on the topic.
There exists a patchwork or privacy laws in Australia, but there are obvious gaps in the system in the context of drones. Existing laws include the Privacy Act 1998 (Cth) and various state and territory surveillance devices laws, which make it illegal in certain circumstances to do things like record or monitor private activities. In addition, agencies should be aware of common law torts, such as trespass and nuisance, which may also apply in certain circumstances.
As a general rule, we believe that agencies and brands should carefully consider their position if they believe that their use of drones may constitute an invasion of privacy. In particular, we suggest making sure that you have permission if you are flying from private property and considering the need for written releases if you are using drones for the purpose of filming people.
We don’t want this article to drone on (sorry), so if you have any questions about your planned use of drones in advertising, please do not hesitate to get in touch.