The processing of personal information using remotely piloted aircraft systems in South Africa

• Author: Nomalanga Mashinini
• DOI: 10.17159/2225-7160/2020/v53a10
• Published date: 01 June 2020
• Date: 01 June 2020
• Pages: 140-158

140 2020 De Jure Law Journal

The processing of personal information

using remotely piloted aircraft systems in

South Africa

Nomalanga Mashinini

LLB LLM (UP)

Lecturer, Faculty of Law, Rhodes University

SUMMARY

Remotely piloted aircraft systems are becoming a commodity all over the

world. Typically known as “drones”, remotely piloted aircraft systems

allow pilots to record videos and take photographs without being physically

present. Such systems are used in both private and commercial ways that

vary from service delivery to surveillance. As such, the protection of the

right to privacy faces new challenges under South African law. This paper

is concerned with the irresponsible use of remotely piloted aircraft

systems, that results in privacy infringement. The article also includes a

discussion of the obstacles that come with identifying users of remotely

piloted aircraft systems, and the burden that such constraints place on

people who seek to enforce their right to privacy. Therefore, the paper is a

critical analysis of whether the existing data protection and civil aviation

laws can withstand the invasion of remotely pi loted ai rcraft sys tems in

South Africa.

1Introduction

No one knows how many RPAS exist in South Africa. Not all RPAS are

registered.1 In 2017, the South African Civil Aviation Authority (SACAA)

reported that the number of registered remotely piloted aircraft systems

(RPAS) has increased from 216 to 468 in total. By the end of 2018, this

number had further grown to a total of 663 RPAS.2 People often use

RPAS for private purposes, either as a toy or to take photographs;3 but

RPAS can provide commercial or essential benefits such as service

1 McKinley “New terrains of privacy in South Africa: Biometrics/smart

identification systems, CCTV/ALPR, drones, mandatory sim card

registration and Fica” 2016 Right to Know Campaign and the Media Policy &

Democracy Project 12.

2 IT Web Daily (2017-02-09) http://www.itweb.co.za/mobilesite/news/159283

accessed on 13 February 2017; “State of RPAS report in South Africa”

available at https://www.rocketmine.com/wp-content/uploads/2019/07/ROC

008-STATE-OF-RPAS-REPORT-2018-email.pdf (accessed 2019-11-21).

3 Clarke “The regulation of civilian drones’ impact on behavioural privacy”

2014 Computer & Security Law Review 287.

How to cite: Mashinini ‘The processing of personal information using remotely piloted aircraft systems in

South Africa’ 2020 De Jure Law Journal 140-158

http://dx.doi.org/10.17159/2225-7160/2020/v53a10

Processing of personal information using remotely piloted aircraft systems in SA 141

delivery.4 Since an RPAS has a camera,5 it can be used to collect

photographic data remotely without obtaining permission from anyone.6

An RPAS provides real-time feedback to the pilot; giving them the

uncontrolled ability to store other people’s photographs and videos.

Given how people interact on social media, a pilot may share the data on

their social media account as well. As a result, the right to privacy withers

when people use their RPAS negligently.

In general, privacy is under threat because of the irresponsible use of

technology such as RPAS.7 Besides, RPAS are becoming more accessible

and inexpensive to purchase.8 The cheapest RPAS costs R1 999 and has

a camera that takes 5-megapixel images and records high definition

videos while the pilot views a live feed. 9 Such RPAS can also be used to

track people, animals and objects without the need for a tracking

bracelet. Therefore, it may allow a remote pilot to track a person and

keep stored records about the latter without their consent.10 Personal

data generates money and helps to predict people’s preferences and

hobbies. As such, the law must be concerned about the implications of

people and businesses acquiring data-collecting RPAS.

This paper involves an analysis of the enforceability of the right to

privacy in civil aviation. The relevant laws to consider in South Africa are

the Civil Aviation Act 13 of 2009 (CAA), read along with the Civil Aviation

Regulations, 2015 (CARs).11 The existing regulations for the recreational

use of RPAS prohibit certain forms of irresponsible use. Whether these

laws are sufficient to protect individuals from unlawful infringement of

their right to privacy will be discussed throughout this paper.

Furthermore, the protection of privacy also entails protection against

unlawful processing of personal information, which may include

photographic data of individuals. Therefore, a critical analysis of the

4 Cash “Droning on and on: A tort approach to regulating hobbyist drones”

2016 University of Memphis Law Review 696; McKinley 2016 Right to Know

Campaign and the Media Policy & Democracy Project 11; Washing ton “Survey

of drone use for socially relevant problems: Lessons from Africa” 2018 Afr.

J. Comp. & ICT 2.

5 Cash 2016 University of Memphis Law Review 696.

6 Cash 2016 University of Memphis Law Review 696; Huneberg “The rise of

the drone: Privacy concerns” 2018 THRHR 267.

7 Cash 2016 University of Memphis Law Review 697 and 704; Loubser and

Midgley The Law of Delict (2017) 327; Huneberg 2018 THRHR 264 & 267;

Washington 2018 Afr. J. Comp. & ICT 6.

8 Cash 2016 University of Memphis Law Review 696; Washington 201 8 Afr. J.

Comp. & ICT 5.

9 See https://broadcasthub.co.za/product_details/ryze-tech-tello-quadcopter-

iron-man-edition for an example of the cheap model described in this

paper (accessed on 2020-04-05).

10 Clarke 2014 Computer & Security Law Review 287.

11 S 155(g)-(i) of the Civil Aviation Act 13 of 2009 empowers the minister of

transport to make regulations for purposes of recreational activities

specified in the regulations and establish regulatory bodies for such

purposes; Civil Aviation Regulations, 2011 published in GG 38830 of 2015-

05-27.