LEGAL ISSUES IN USING DRONE

1. Tresspass to land

Tresspass to land can be definied as unreasonable interference with another’s possession of

land.The tort may only committed against the person who have the possession of the land and
not the owner of land.Under common law,two main element to prove the existence of tort of
trespass to land is mental state of the defendant and interference.

However the issue is whether flying drone into other’s property of land would amount to be
said that person have committed trespass to land. Thus,it should be noted that interference to
airspace is one of the interference with property under law of tort. This is because a person
right over the land extends below the surface and above it, as well as the air space.1

The court may also can consider the height of aircraft flown at the time offence in committed
for jurisdiction purposes.In the case of Bernstein v Skyviews & General Ltd 2,the defendant
took aerial photographs of houses and offered them for sale to owners.The claimant objected
to this and argued that the defendant had had trespassed on his land in order to take the
pictures.The court held it was defendant had flown over the claimant’s land without
permission but the right of ownership of airspace was limited to a “height as is necessary for
the ordinary use and enjoyment of land”.This did not extend to the height at which the
aircraft had flown hence the action failed.

In the context of Malaysia law, flying the small unmannerd surveillance aircraft (drone) will
be subject to section143(1) of the Civil Aviation Regulation. The section stated certain
condition to fly the surveillance aircraft that equipped cameraor microphone.The aircraft
could not be flown over any designated area without permission from Director General 3. Here
designated area mean by any are which are used for residential,recreational,commercial or
industrial purposes. So flying drone in residential area without authority is illegal and it
would amount to trespass to another’s property under tort.This will cause the claimant to
bring an action under interference to airspace against the person flying the drone.If there is
valid authority such permit he would not be liable for his action of trespassing.

Reference
1
Norchaya Talib. Law of Torts in Malaysia (3rd edition)
2
[1977] 2 All ER 902
3
Regulation 143(1)(a) of the Civil Aviation Regulation 2016
Talib, Norchaya ( 2010) . Law of Torts in Malaysia (3rd edition).Sweet & Maxwell Asia

Civil Aviation Act 2016.

MayWengKai & Associates (13 March,2018).Drone Or Not To Drone? Here are 5 Legal Issues
You Might Want to Consider Before Flying Your Drones ,Retrieved from
https://mahwengkwai.com/drone-not-drone-5-legal-issues-might-want-consider-flying-drones/