Are drones invading our privacy?

Drone journalism: Social and legal aspects

by Theodore A. Fernado Warnakulasuriya

( January 22, 2017, Colombo, Sri Lanka Guardian) As we begin a new year, unmanned aerial vehicles – a.k.a. drones – have left the realm of science fiction and are making their way into our living rooms and have become an important topic in the public sphere. Our attention was drawn to “drones” recently when a drone was used to photograph the coverage around the exhumation of slain journalist Lasantha Wickrematunge’s body in Colombo, without the consent of the family members who did not want the media to cover the event due to personal reasons.

A drone was used to photograph the coverage around the exhumation of slain journalist Lasantha Wickrematunge’s body in Colombo. Seen here are policemen at the scene.

Unmanned aerial vehicles (UAVs), known also as “drones” are a technology now hovering over, on many fields, including journalism and mass communication. It is said that “drones,” or these small remotely-guided aircraft have gained prominence in the post-9/11 era through their increased use in the hunt for Al- Qaeda leaders in Afghanistan and Pakistan. We live in an era where, with increasingly sophisticated navigation systems and dramatically decreased costs, drones are purchased and put to use by commercial organizations and private citizens. Drones are used at present to obtain aerial footage in a variety of locations around the world. Use of drones for surveillance and their implications have posed or raised new questions for the field of journalism and mass communication.

Surveillance has long been identified as one of the primary functions of media (Lasswell 1948). According to Lasswell and Wright, one of the Functions of mass communication is surveillance of the environment. This is one of the important function of the media, and media is supposed to be always vigilant, use its surveillance eyes on, of all the happenings around the world and provide information to society at large. Because of this function, the media has the responsibility of providing news and covers a wide variety of issues that are of use to society. The surveillance function of the media helps to maintain social order by providing instructions on what has to be done in times of crisis, thereby reducing confusion among the masses. To put it another way, people make use of media and communication technologies to see the world beyond the reach of their own senses. As an important surveillance instrument, unmanned aerial vehicles, or drones, extend and help the surveillance capabilities of the media, helping it to function as a watch dog of society at large.

Although, media surveillance has been understood as contributing positively to the well being of society at large, a more critical view of surveillance is articulated by Foucault’s analysis of Bentham’s Panopticon. It is understood as a platform, from which authorities could view the activities of everyone without being directly observed themselves (Foucault 1977; Bentham and Bozovic 1995). Surveillance under this view is a concept of power (Deflem 2008). Scholarship attests that new digital technologies allow powerful entities the ability to track citizens’online and offline behavior. In other words, automatically, against a will of an individual, it is a kind of centralization of power (Mattelart 2010; Lyon 2003, 2007; Magnet and Gates 2009). The panoptic view of surveillance is further characterized by the many being observed by the few (and the powerful). As stated by (Mark Tremayne and Andrew Clark 2017), however, when those doing the watching are journalists or citizens other terms may be more appropriate. If one “reverses the panoptic gaze” then the watched become the watchers and the surveillance is synoptic

(Haggerty 2006; Dupont 2008; Mathieson 1997; Elmer 2003; Lyon 2003; Yesil 2009). Examples of this phenomenon include surveillance of police by citizens concerned about racial profiling (Huey, Walby, and Doyle 2006) or the use of surveillance technology by individuals or marginalised groups against government or corporations (Dupont 2008).Synoptic surveillance also applies to voyeuristic entertainment when an audience (the many) observes cast members (the few) on reality television shows (Lyon 2006; Mathieson 1997), although in some of these cases the cast members are in on the voyeurism. According to many scholars, sousveillance is another variation of surveillance. Sousveillance (observation “from below”) occurs when a participant in some activity records events rather than an authority figure (Huey, Walby, and Doyle 2006; Yesil 2009). Examples of sousveillance include citizens recording themselves during interactions with police (Huey, Walby, and Doyle 2006) and use of cell phone cameras by individuals to capture events that might have gone unrecorded in the past (Yesil 2009). The proliferation of low-cost cameras among citizens has led to a related idea, the “democratization of surveillance” (Kiss 2009; Huey,Walby, and Doyle 2006; Dupont 2008). Scholars further attest that one of the serious consequence is that, all of these types of surveillance are leading to a blurring of the public–private distinctions of the past (Ford 2011). Peoples’ expectations of privacy, their “zones of immunity” (Lyon 2001), are shrinking due to digital data mining (Gandy 2006; Lyon and Zureik 1996) and a proliferation of video cameras. Increased use of camera-equipped aerial drones is likely to further aggravate, this erosion.

There is no doubt, that when the words employed by a journalist is backed up by facts and evidence gathered with all the tools at their disposal, they can have a significant impact on the minds of the public. Being able to capture, aerial photographs when reporting on a story, makes a drone a valuable resource, for media outlets, but in this regard the norms and guide lines warn that there is opportunity for abuse – especially when it comes to matters of privacy and safety.

The right what makes drones so appealing to journalists is that they give reporters access to the sky. That’s something that was not nearly so accessible before these machines made their presence known in the public sphere. Usually, to get aerial shots one needs a helicopter, a hot-air balloon or an airplane, all of which are dependent on others to operate and cost much money. However, one of the dangers, of using drones, especially in populated areas, is that they can come crashing down on the very citizens they were sent up to look down on.

In the United States, out of fifty states, already 43 states, and nine have enacted drone legislation, and bills are still active in five more (Bohm 2013). But because these drones are being operated in public, at present, there’s not much in the way of U.S. privacy laws that prevent their use. However, The Fourth Amendment provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The law practised especially in the United State, recognises that at some point an individual right to privacy limits the media’s First Amendment right to inform the public. Unlike the law of defamation, which is at least 700 years old, the law of privacy is of relatively recent origin. The law of privacy is mainly concerned with those actions that intrude into personal space. In a broad sense, privacy law includes such things as trespass, harassment, eavesdropping, wiretapping, telling secrets, and exploiting reputations. According to the late Professor William L. Prosser, privacy law should be thought as a complex of four torts: appropriation, intrusion, public disclosure of private facts, and false light in the public eye. While, these four torts share a common name, they are clearly distinct and can be summarised briefly. Intrusion into a person’s mental or physical solitude is closely related to trespass. The difference however, is that trespass violates a person’s property, while intrusion violates the person. It involves entry without permission, into another’s personal space and in a manner that is highly offensive. Journalists who use subterfuge to gain entrance to a private home are especially vulnerable to suit as intruders. A photographer who harasses a newsworthy subject also may be an intruder. So may an eavesdropper or wire tapper. A disclosure of private fact occurs when a medium, without consent, disseminates personal information that a reasonable person would find to be highly offensive and not of legitimate concern. To cite a case, for example, following journalistic convention, a photo of a nude woman taking a bath is probably not newsworthy, (McCabe v. Village Voice, 550 F.Supp. 525). A photo of a topless Duchess of York cavorting near St. Tropez might be, and a photo of a nearly nude woman fleeing to waiting police after being held hostage almost certainly would be (Cape Publications v. Bridges, 431 So.2d 988, 8 Med.L. Rptr. 2535). By definition, a person can be put in a false light only through publicity. He or she must be the subject of a publication, tape, film, or broadcast that distorts his or her personality. Appropriation involves, the unauthorised use of one person’s name or likeness to benefit another. Commonly, such use occurs in an advertisement or in other promotional material designed to help the user to make a profit.

It is clear the sword of law is hanging and hovering in many countries, over journalists especially due to lack of clear guide-lines in the use of drones. In order to ward off potential lawsuits, media owners need to ensure that drones are used in an ethical manner consistent with professionalism and appropriate news practices. News directors and editors and professional associations need to establish codes of conduct for the use of such devices in order to avoid costly law suits.

(The writer teaches media law, visual research, communication theory, and Asian cinema at the Open University and many other higher institutions of learning in Sri Lanka.)


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