By Russel Luck

Google Glass (a type of wearable technology with an optical head-mounted display. Google Glass displays information in a smartphone-like hands-free format (http://en.wikipedia.org, accessed 10-3-2015)) and Smart Watches (wearable technology or wearables) became available to South African consumers for the first time in 2014. Since then consumers have wanted to know if they could be fined by traffic services for using these wearables while driving.

The short answer is that no official view has been expressed by South African traffic services but this does not mean consumers are in the clear.

Section 308 (1)(c) of the National Road Traffic Act 93 of 1996 places a duty on drivers in general to have complete ‘control’ of their vehicle and ‘full view’ of the roadway and traffic ahead while driving.

In addition Road Traffic Ordinance Regulation 308A (1)(a) deals specifically with mobile communication technology while driving. It prohibits a driver from ‘holding’ a mobile phone or communication device in one or both hands or with any other part of their body while driving. Section 1(b) provides an exception where a driver uses ‘headgear’ that enables them to operate their vehicle so they are not in contravention of the above prohibition.

This regulation is strict and penalises the driver not only when they talk on their phone or mobile communication device but when they hold this device while driving.

Google Glass is most probably a ‘communication device’ because it has mobile phone capabilities. The fact that it is voice operated and allows a driver to have both hands on the steering wheel and their eyes on the road means that it could fall within the definition of ‘headgear’. If so, the driver would be allowed to use Google Glass while driving. However, one of the concerns about using Google Glass is that it may obscure a driver’s vision even though it is voice operated and essentially ‘hands free’. If the latter position is taken then drivers would not be able to use Google Glass while driving.

Smart Watches are also troubling from a legal perspective. They pair with the user’s mobile phone and provide communication features like e-mail and text messaging. In order to use these features drivers would have to take their eyes off the road and use at least one hand to operate their Smart Watch. This may be in conflict with reg 308A above or the general National Road Traffic Act provisions for drivers to have ‘control’ of their vehicle and full view of the roadway while driving. It becomes even more problematic to decide if wearing a wrist watch would be considered ‘holding’ a mobile communication device contemplated by reg 308A (1)(a).

The decisive factor will be how South African traffic services enforce these provisions practically. For example, a woman applying her make-up in a traffic jam has a hand (or both hands) off the steering wheel and her eyes diverted from the road. She could not be said to be in ‘control’ of her vehicle in terms of the National Road Traffic Act 308 of 1996. In general, South African traffic services do not seem to penalise female drivers for this conduct even though they are entitled to.

Traffic laws and regulations vary from place-to-place. Reuters published an article on 16 January 2014: ‘California woman who drove with Google Glass beats traffic ticket’ (www.reuters.com, accessed 10-3-2015). It reported that a Californian woman who received a ticket for wearing Google Glass while driving had the offence dismissed on technical grounds. The court held that it could not be proved if her Google Glass was switched on while she was driving (or switched off). It left open (but clearly implied) that if the Google Glass was switched on while driving that driver would be penalised for contravening traffic laws. In the United Kingdom (UK) the use of a smart watch is not banned outright but the UK Department of trade and industry has issued a statement that improper use while driving could result in heavy penalties. These issues are undecided in South Africa but affect a great deal of citizens going forward. There is a good chance that South African traffic services will enforce regulations in line with overseas trends.

Russel Luck BA LLB (UC) LLM (Technology Law) (Unisa) is an attorney at SwiftTechLaw in Cape Town.

This article was first published in De Rebus in 2015 (April) DR 19.