Drones to be used by environmental group for surveillance on private properties

April 1, 2013 |

The Sydney Morning Herald with I spy with my little fly … animal cruelty , the Australian with Farmers ‘may shoot down drones’ sent by Animal Liberation to check their stock , the ABC with Animal welfare group to monitor farms with drone, the Daily Telegraph with Animal Liberation spying drones attract ire of farmers, the Age with Drone will range freely over farms to keep tabs on animal welfare all report on Animal Liberation’s announcement that it will operate a camera mounted drone over private properties to monitor the treatment of livestock and gather evidence of animal cruelty.

Animal Liberation claims it has legal advice that it has legal advice that what they will be doing is legal. From the Sydney Morning Herald article :

And there appears to be little farmers can do to avoid coming under drone surveillance – flying drones above tree height is legal.

”Our legal advice is that if you’re no nearer than 10 metres above ground, and you’re not filming in anyone’s houses, you can go ahead,” said Mark Pearson, head of the animal welfare group.

It is likely that any legal advice Animal Liberation obtained is somewhat more involved and probably more nuanced than the broad brush, simplistic assertion quoted.  Or at least one would hope so. What Animal Liberation would probably have been advised is that legal action in relation to the use of drones is complicated and difficult whether it is under the head of nuisance and trespass.  The developing cause of action in equity, for misuse of private information would be even more difficult.  And yet the use of drones can, and probably will be used in a way which will actively interfere with an individual’s privacy in the not too distant future. The Privacy Act will probably not apply in most circumstances they are used.  The Privacy Commissioner wrote to the Attorney General setting out his concerns about the lack of regulatory coverage and recommending a review (see my post here).
Academics and various law reform commissions, most recently the Australian Law Reform Commission have highlighted the inadequacies of the common law in providing individuals with adequate legal protections from newly developing technologies (not to mention existing ones).  Their prescription has uniformly been a statutory right of privacy. The elements of the action and the defences  have differed from Commission to Commission and with various authors, but not in a substantial way and certainly not so as to make uniformity unachievable.  The Victorian and New South Wales Government ignored the recommendations of their respective law reform commissions (New South Wales Report and Victorian Report).  The Commonwealth Government has referred the issue back to the Australian Law Reform Commission for further consideration notwithstanding that in 2008 it had recommended the statutory right of privacy that the government was supposed to consider and make a decision upon.  It makes no legal or policy sense.
Interestingly the facts giving rise to the High Court’s consideration of privacy issues in ABC v Lenah Game Meats Pty Ltd involved activists who had an association with Animal Liberation.  It is enough to extract part of the facts recited in Gleeson CJ’s reasons where he said, at [23] – [26]:

The respondent is a processor and supplier of game meat. It sells possum meat for export. Tasmanian brush tail possums are killed and processed at licensed abattoirs. The respondent’s business is conducted according to law, and with the benefit of all necessary licences. The methods by which the possums are killed, although lawful, are objected to by some people, including people associated with Animal Liberation Limited, on the ground that they are cruel.

 A person or persons unknown broke and entered the respondent’s premises and installed hidden cameras. The possum-killing operations were filmed, without the knowledge or consent of the respondent. The film was supplied to Animal Liberation Limited, which, in turn, supplied the film, or part of it, to the appellant, with the intention that the appellant would broadcast it. Although the Statement of Claim does not make this specific allegation, the appellant is now aware, if from no other source than the evidence of Mr Kelly, that the film was obtained by unlawful entry and secret surveillance. It probably inferred that, even before Mr Kelly’s affidavit was filed.

It is not suggested that the operations that were filmed were secret, or that requirements of confidentiality were imposed upon people who might see the operations. The abattoir is, no doubt, regularly visited by inspectors, and seen by other visitors who come to the premises for business or private reasons. The fact that the operations are required to be, and are, licensed by a public authority, suggests that information about the nature of those operations is not confidential. There is no evidence that, at least before the events giving rise to this case, any special precautions were taken by the respondent to avoid its operations being seen by people outside its organisation. But, like many other lawful animal slaughtering activities, the respondent’s activities, if displayed to the public, would cause distress to some viewers. It is claimed that loss of business would result. That claim is not inherently improbable. A film of a vertically integrated process of production of pork sausages, or chicken pies, would be unlikely to be used for sales promotion. In the present state of the evidence, the case has been argued on the basis, and all four judges in the Supreme Court have accepted, that the respondent will suffer some financial harm if the film is broadcast. The nature of that harm was described by Mr Kelly as follows:

“The distribution and publication of this film is likely to adversely and substantially affect the [respondent’s] business. The film is of the most gruesome parts of the [respondent’s] brush tail possum processing operation. It shows possums being stunned and then having their throats cut. It is likely to arouse public disquiet, perhaps even anger, at the way in which the [respondent] conducts its lawful business. This is no different from any animal slaughtering operation in Australia, which is normally hidden from public view.”

 The exact meaning of “hidden from public view” is not clear, and was not explained. The evidence does not show that it is easier, or more difficult, for a member of the public to enter abattoirs generally, or the respondent’s premises in particular, than it is to enter any other private property where a manufacturing operation is being carried on, or, for that matter, commercial premises. There is a sense in which most activities conducted on private property are “hidden from public view”. But it may be necessary to examine more closely the meaning of such an expression if questions of legal confidentiality arise.

The High Court found that Victoria Park Racing and Recreation Grounds Co Ltd v Taylor was not authority for the proposition that there was no right of privacy.  It found this was not the appropriate vehicle for consideration for any such right.

Animal Liberation are not known for their restraint.  Depending on one’s outlook that is a good or a bad thing.  What it it does mean is that it may lead to development of the common law if its use of a drone is challenged.  Absent any action by legislatures this seems the only option.  It would be a failure of policy by government if this is the way the law is to develop. At times like these Benjamin Franklin’s saying “You may delay, but time will not” is apposite.

The Sydney Morning Herald article provides:

An environment group is about to become the first in Australia to deploy surveillance drones to hunt for evidence of animal abuse on private property.

Animal Liberation will operate a drone, equipped with a powerful camera, above free-range egg farms, sheep farms and cattle yards to gather evidence of abuse.

And there appears to be little farmers can do to avoid coming under drone surveillance – flying drones above tree height is legal.

”Our legal advice is that if you’re no nearer than 10 metres above ground, and you’re not filming in anyone’s houses, you can go ahead,” said Mark Pearson, head of the animal welfare group.

”For example, if an egg producer says that they are free range, it would be helpful to check their claims by filming from above the property. You can gather the evidence, and there’s no need to trespass. Or let’s say we find a sheep dying from fly strike, we can record the location on a GPS and notify the authorities,” he said.

The group bought the six-bladed, helicopter-type drone for $14,000 from a commercial supplier, using public donations, and has just completed a training program. Deployment will begin next week, with several farms and businesses earmarked for surveillance.

Farmers were dubious about being watched by drones.

”Many people in rural communities would see this as another attack on their peace of mind and an invasion of their privacy,” said president of the NSW Farmers Association Fiona Simson.

She said farmers recognised that safe food meant healthy and happy animals. ”NSW Farmers does not condone any acts of animal cruelty and farmers are committed to high animal welfare standards,” Ms Simson said.

Mr Pearson said the drone would not just be used to gather evidence of illegal cruelty, but would also film some routine, legal farm practices that might upset non-farmers. ”We’re not interested in what farmers may be doing in their daily activities, and I completely respect people’s privacy,” he said.

”But there are lots of cases where farming activities cause horrible distress to animals – mulesing being a common example. People are entitled to know and see what’s going on. So, even if it is lawful, if we think the public is going to be outraged or if we think they need to be informed, we will show it.”

This month Animal Liberation exposed horrific acts of cruelty at an Ingham turkey farm in Sydney, after anonymous footage was handed to the group showing turkeys being bashed and trodden on.

Australian Privacy Commissioner Timothy Pilgrim has said ”the potentially intrusive nature of the technology” meant there should be a public debate about existing regulations.

Environment groups overseas are also starting to use drones, and the anti-whaling group Sea Shepherd was rebuked by the Australian Antarctic Division last year for flying drones in a region covered by the Antarctic Treaty without having done an environmental impact assessment.

Infographic (The February referred to in the graphic is February 2012):

The article also hyperlinks to earlier articles here, here, here and here. I have posted on the subject here, here, here, and here.

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