I spy with my little eye: Do you have a legal right to privacy at home?

Privacy in the home is one of those things we take for granted. But, do you have a legal right to privacy?

Can you complain if a neighbour’s drone suddenly flies into your backyard? When is someone trespassing on your property?

A right to privacy in the home isn’t as straight-forward as one might think.

When it comes to trespassing, if there is no sign or gate preventing entry there is implied authority for anyone to walk up to your front door.

“They don’t have authority to steal your pot plants, they have authority to knock on your front door to ask for a donation for a charity or read your electricity meter or to ask for the way,” says Professor Barbara McDonald from Sydney University.

That implied authority is revoked if the gate is locked or there is a sign, such as “no entry”.

Trespassing falls under common law and applies throughout Australia. It is defined as when somebody either enters or places something onto someone else’s land without permission.

“It really is the case; every person’s home is their castle. The castle really has some resonance there, because you can protect where you live,” says Professor McDonald.

This applies to possession not ownership, which means it’s the tenant, not the landlord, who has the right to sue.

Objects can also trespass. If a ball has strayed into the neighbour’s yard a few times and it was OK to retrieve it, it is implied that you could get it again without the need to keep asking.

However, a person needs to get consent to go onto your land in the first few instances.

If the ball keeps hitting the roof at all hours of the night, then it would be trespassing each time, but would be actionable as a nuisance. Nuisance also comes under common law.

“When somebody does something on or outside the possessor’s land, which interferes with the occupiers’ use and enjoyment of the land, this is a nuisance,” says Professor McDonald.

However, is it a nuisance having your neighbour’s prying eyes over the fence?

Robert Bradley, principal at Aitken Partners says, “There is no expressed right to stop you from looking over your neighbour’s fence, unless it would constitute a nuisance”.

If you can look over the fence into the neighbour’s yard, there is no privacy law to stop you from doing so. It is up to the neighbour to put up a screen, plant a hedge or put in some physical barrier to stop your snooping eyes.

If you don’t like people looking into your house, invest in some heavy curtains. Otherwise, legally, they are allowed to look.

“If you were, for example, to sit yourself up on a ladder looking over the neighbour’s back fence, they could get an order to prevent you from doing so. But if you were just going about your business, they couldn’t get an AVO for infringement of privacy,” says Bradley.

Legally, when it comes to privacy, recreational drones are a grey area.

However, the safety rules enforced by the Civil Aviation Safety Authority (CASA) places a lot of limitations on where a drone can fly in a built-up area.

A drone can only fly in daylight and needs to be at least 30 metres away from other people. It must always be in the line of sight of the person flying it, so legally, you can’t fly it over the fence and let it disappear.

The Privacy Act, which applies to all states in Australia, prevents larger companies with an annual turnover of over $3 million flying drones over individual properties.

Otherwise, for smaller recreational drones, there is nothing specific in the Privacy Act addressing this issue. “The law is catching up with technology all the time. That’s the problem,” says Professor McDonald.

Bradley says, “Hopefully, at the stage when properties are built, some consideration is given to privacy to make sure that windows don’t overlook. For example, you often find a planning permit condition that patent glass or a screen be erected to stop people looking in. But after that, retrospectively, grow a tree or put up a screen.”