Courtney Barclay and Kearston Wesner
This is an advance summary of a forthcoming article in the Oxford Research Encyclopedia of Communication. Please check back later for the full article.
Drones armed with cameras have allowed journalists to capture images from new perspectives and in places previously unreachable. Footage of volcanic eruptions, war-torn villages, and nuclear disaster areas have all been made possible with drone technology. However, this same technology presents risks to personal privacy.
Since before Warren and Brandeis penned the oft cited Right to Privacy, newsgatherers have tested the boundaries of society’s notion of privacy. The development of new technologies at the time, such as the snap camera, made photography a faster, more efficient endeavor. Warren and Brandeis recognized that the increased photographic recording of society threatened individual privacy on a scale never before imagined. More than a century later, the use of new technology—drones outfitted with cameras and other imaging devices—has once again ignited debate over how to protect an individual’s privacy while ensuring journalists’ ability to gather news.
The traditional remedy for intrusive journalism has been through tort law, which requires an individual to show that she or he had a reasonable expectation of privacy. By and large, these laws have favored journalists; however, that result is usually based on the fact that the newsgathering activity occurred in a public place rather than any recognition of the importance of newsgathering. State lawmakers have begun to address drone photography with a wide variety of approaches that would move away from this public place exception—from prohibiting photography over private property to prohibiting any photography without someone’s consent, even in a public place.
The press has recognized the cost to individual privacy incurred by use of technologies such as drone photography. Professional codes of ethics instruct journalists to minimize harm to the public, requiring an “overriding” public interest to invade someone’s privacy. The Professional Society of Drone Journalists’ Code of Ethics addresses the additional responsibilities inherent to drone technology. Under this code, journalists should record only public spaces and delete any images of individuals in a private space.
Drone technology represents only one of the latest developments in surveillance used for law enforcement, commercial enterprise, and journalism. However, its growth and the gaps in privacy tort law underscore the importance of strong codes of ethics that serve the interests of both newsgathering and individual privacy.