C&A Friedlander Attorneys

Drones (otherwise known as remotely piloted aircraft or RPAS) have the potential to replace business across transportation, security, and agriculture. The media and entertainment sector is right in the crosshairs of this shift. There are however legal implications that need to be considered, including the use of drones for overly invasive purposes and you may be required to obtain a remote pilot’s license (RPL) to operate the drone in certain circumstances.

Internationally the law is playing catch up with regulating drone use and the rights that individuals have against the use of drones in their private space. In South Africa, the South African Civil Aviation Authority (SACAA) formulated regulations to deal with drones, which were adopted by the Minister of Transport. Part 101 of the Regulations came into force on 1 July 2015.

Toy Drones Excluded?

The regulations define RPAS as “unmanned aircraft which is piloted from a remote pilot station, excluding model aircraft and toy aircraft.” Model aircraft and toy aircraft are defined separately and do not fall under the regulations for RPAS. Toys are “designed or intended for use in play by children.” The key difference between a drone (RPAS) and a model aircraft or toy is what it is used for. It is however arguable that if the drone is used for commercial purposes, then it would likely be classified as a RPAS and subject to regulation.

Where Can You Fly Your Drone?

The Regulations include provisions that prohibit you from flying your drone in the following areas or circumstances, except by the holder of an operator certificate and as approved by the Director of Civil Aviation:

  • above 400 ft above ground level;
  • within a radius of 10 km from an aerodrome;
  • within restricted or prohibited airspace;
  • adjacent to or above a nuclear power plant, prison, police station, crime scene, court of law, national key point or strategic installation;
  • in controlled airspace;
  • at night;
  • beyond the pilot’s line of sight (in other words, you must be able to see your drone at all times);
  • directly overhead any person or group of people or within a lateral distance of 50 m;
  • within a lateral distance of 50 m from any structure or building;
  • over a public road, along the length of a public road or at a lateral distance of less than 50 m from a public road

In addition, most national parks will not grant a permit for film and photography shoots in the park if a drone will be used.

For filming purposes, the regulations allow private and commercial pilots to fly closer than 50m from people if those people are part of the film shoot and under the control of the drone pilot. The regulations also allow private and commercial pilots to fly closer than 50m from buildings if the owner of that building has given consent.

Also, commercial drone operations will be able to get special permission to fly close to buildings to accomplish their work, and this will need to be described in the operations manual, including mitigation of risk.

A Licence to Fly

The regulations distinguish between drones used for commercial, corporate or non-profit purposes and those used for an individual’s personal and private purposes. Private use means “the use of an RPA for an individual’s personal and private purposes where there is no commercial outcome, interest or gain”.

A valid remote pilot license (RPL) and an operator certificate (ROC) is required for commercial, corporate, and non-profit operations of a drone.

Although you don’t need a licence or certificate to operate a drone for private use, if you fall foul of the above regulations relating to where you may fly your drone, you can be fined up to R 50, 000.00 or be imprisoned for a maximum of 10 years.

Drone Law and issues of common law

When a camera is mounted on a drone, additional issues relating to common law delicts including trespass and nuisance would be applicable if an individual feels drones have invaded his or her privacy. The consideration should be that it is an invasion of privacy if the picture could not have been taken without trespassing if the drone hadn’t been used.

The Civil Aviation Act however provides that no action will lie in respect of trespass or nuisance by reason only of the flight of aircraft over any property at a height which, having regard to wind, weather and all the circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long as the provisions of the Act (and regulations) and of the Chicago Convention and of the International Air Services Transit Agreement of 1944 are duly observed. The exemption from liability for trespass or nuisance is therefore dependent, inter alia, on compliance with the relevant Civil Aviation Regulations. For example,

At common law ownership of land includes the exclusive right to the airspace above it, and trespass into such airspace would theoretically be actionable, provided that the other requirements for delictual liability were satisfied.

Key takeaways

Rather not take the risk of being unlicensed as this will affect your insurance coverage and legitimacy with clients who would rather use registered drone pilots for their shoots with insurance and public liability cover.

Brett Cotterell
C & A Friedlander Inc.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)