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Does flying a drone over another’s property constitute trespassing?

One day in July of 2015 William Meredith spotted a drone flying over his property in Kentucky. Meredith was quick to reach for his weapon and shot it down. This raised the question whether the flying of a drone by the operator can constitute trespassing over a property’s airspace. This marked the beginning of a debate weighing up ones right to privacy and another’s right to freedom.

Drone laws - Attorneys Cape Town

Does flying a drone over another’s property constitute trespassing?

The South African common law indicates that the owner of immovable property is deemed the owner of the ‘ground beneath and the air above’ the property. Section 8 of the Civil Aviation Act (CAA) states that if the operator of an aircraft flies over a residential property at a ‘reasonable height’, the operator will be protected from liability.

Although the CAA was enacted before the existence of drones, a drone operator may be held liable if the remotely operated aircraft flies in contravention of this act.

In 2015 legislation came into existence specifically regulating remotely operated aircraft systems (drones). Certain restrictions came about but the legislation made no reference to the trespassing debate. Hence, if a drone flies over another’s property at an unreasonable height, according to the CAA it can be considered as trespassing.

Drones and the property owner’s right to privacy

As a drone could be equipped with a video camera, a person’s right to privacy should be taken into account when flying over a residential area. The Protection of Personal Information Act’s (POPI’s) key concern is to ensure protection against the unlawful processing of another’s personal information. POPI makes no reference to the use of drone technology but when applying this act’s principles, breach of privacy can occur when flying a drone over another’s property.

Remedies available

Even though in 2015 legislation was introduced that regulates the operation of drones, legal remedies are very limited for the aggrieved property owner. The one thing we can say for sure is that standing on your property with a loaded weapon every time you hear the familiar buzz of a drone is not an option.

Contact Velile Tinto Cape Attorneys for legal assistance.

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