Non-survival of the cause of action

10.46 The ALRC recommends that an action for serious invasion of privacy should not survive the death of a plaintiff.

10.47 This recommendation means that actions cannot survive for the benefit of a deceased person’s estate, whether or not proceedings had been commenced before the death of the plaintiff. Furthermore, actions cannot subsist against the estate of a deceased person, whether or not proceedings had commenced before the death of the defendant. This recommendation has a similar effect to the provisions of the Uniform Defamation Laws.^[39]

10.48 Several stakeholders supported this recommendation.^[40] All previous law reform inquiries into a new privacy action recommended that a cause of action be restricted to living persons.^[41]

Privacy action protects personal interests

10.49 The new tort is intended to remedy a wrong committed against a person’s dignitary interests. The mischief to be remedied by a privacy action is the mental harm and hurt to feelings suffered by a living person.^[42] The ALRC therefore considers that only the individual who has suffered loss or damage should be able to sue for relief, and that the action should be limited to living persons.^[43] This position is in keeping with the common law rule of actio personalis moritur cum persona (a personal action dies with the plaintiff or the defendant).^[44]

10.50 PIAC noted that

Most existing statutory causes of action for invasion of privacy lapse with the death of the person whose privacy has allegedly been invaded. This can be seen as flowing from the fact that the right to privacy is generally seen as a personal right. It has also been justified on the basis that because the main mischief of an invasion of privacy is the mental harm and injured feelings suffered by an individual, only living individuals should be allowed to seek relief.^[45]

10.51 A statutory cause of action for serious invasion of privacy is analogous to an action in defamation, which does not survive the death of the person defamed, nor the person who published the defamatory matter.^[46] The Law Institute of Victoria made the distinction between actions in defamation and actions for breach of confidence, arguing that a duty of confidence can persist after death.^[47] However, breach of confidence actions protect quasi-proprietary interests, that is, the plaintiff’s interest in the confidential information, which will often be commercial information. By contrast, privacy actions protect a personal interest in the plaintiff’s privacy.

10.52 Even where actions currently survive for the benefit of an estate, the relevant legislation generally restricts the damages recoverable to special damages for the precisely calculated pecuniary losses suffered as a result of actual damage from injuries received, such as medical expenses or loss of earnings before death. It is generally not possible to recover damages for pain, suffering and the mental harms that would be the most likely result of a serious invasion of privacy.^[48]

10.53 Some stakeholders submitted that the action could survive in some specific circumstances. For example, PIAC argued that the action should survive the death of a plaintiff where ‘important systemic issues are involved’.^[49] PIAC suggested that the value of privacy as a matter of public interest is akin to the public value in eliminating discrimination and should therefore survive the death of a complainant for the good of all society.

10.54 Some areas of anti-discrimination law recognise the survival of certain interests in certain circumstances. For instance, s 93(1) of the Anti-Discrimination Act 1977 (NSW) provides that a discrimination complaint survives the death of the complainant. It could be argued, however, that any damages payable to an estate for an invasion of the privacy of a deceased person, would amount to a windfall to that person’s estate to the benefit of beneficiaries who may not have been harmed in any way by an invasion of privacy.

Actions by affected parties

10.55 Given that a privacy action generates a personal right of action, it follows that an action should not be designed to remedy any secondary damage others might suffer—for example, a surviving family member who also suffered distress caused by the invasion of the deceased person’s privacy while the latter was alive.^[50]

10.56 There may be instances where the conduct of a defendant following the death of an individual may invade the privacy of surviving relatives or other parties who are closely involved.

10.57 Dr Ian Turnbull argued that the action should survive for the benefit of

immediate relatives or individuals within relevant organisations, that can establish prima facie loss or damage to themselves, as a result of the disclosure of the information.^[51]

10.58 However, in such cases it would be possible for family members or other parties to pursue their own actions for serious invasion of privacy where they meet the tests for actionability in their own right.^[52] These actions may arise out of conduct indirectly involving a deceased person, such as where the privacy of a family member or other relevant party is invaded in a private moment of grief or mourning,^[53] or in circumstances where a deceased’s medical record is published to disclose a condition affecting surviving relatives. This position is generally in line with defamation law, where a family member may only bring an action in respect of a defamatory slur against a deceased family member where he or she has been personally defamed.^[54]

10.59 PIAC and Dr Normann Witzleb argued that it may be appropriate to allow family members to pursue actions, but limit the remedies available. For instance, PIAC submitted that

It is appropriate, however, to limit the remedies available to the estate. The Ireland Law Reform Commission proposed that the cause of action is extinguished only in relation to ‘the remedy of damages or an account of profits so that injunctive relief, delivery up and other relief remain available.^[55]

10.60 PIAC argued that an action should survive the death of a person in particularly egregious cases, such as where systemic issues are involved. In such cases, PIAC argued that the harm incurred extends beyond that experienced by the relevant individual or their family, and is therefore a societal harm:

As an invasion of privacy is a societal (as well as an individual) wrong, the continuation of a cause of action for invasion of privacy after a person’s death may assist in achieving the societal objects of the proposed legislation, regardless of whether or not it results in a personal remedy.^[56]

10.61 Several stakeholders argued that privacy actions should survive the death of a plaintiff where the wrong involved an online invasion of privacy.^[57] Due to the nature of the internet, online invasions of privacy may be ongoing, compounding the harm caused by the initial invasion of privacy.

10.62 Witzleb argued that the

The digital afterlife of a person can provide a fertile ground for disputes, including how a deceased person’s private information should be handled. The new privacy tort should provide redress in these and other cases involving the privacy interests of a deceased person.^[58]

10.63 To illustrate this problem, PIAC gave the example of the defacement of tribute pages on social media sites which are established in dedication of deceased persons.^[59]

10.64 This example was also used by UNSW Cyberspace Law and Police Community when highlighting two circumstances surrounding death and serious invasions of privacy:

(1) the potential for breaches of privacy to be directly linked to a person’s cause of death through a variety of means, and (2) an increasing trend of harassment and defacement of on-line and off-line memorials which cause great distress and damage to families and loved ones. The outrage caused by the public defacement of online memorials in the Trinity Bates murder highlight the privacy tort as an additional or alternative avenue of legal redress. The suicide of Tyler Clementi in the US after secretly filmed footage of him kissing another man was posted online further emphasises the scope and impact of privacy threats in the digital era. For these reasons we consider it important that in line with earlier observations (ALRC Issues Paper 43 para [110]) that serious invasion of privacy action persist to the plaintiff’s estate.^[60]

10.65 The Arts Law Centre of Australia and the Law Institute of Victoria argued that an action should survive the death of the person whose privacy is invaded if that person identified as Aboriginal or Torres Strait Islander, given the specific cultural beliefs of those communities associated with mourning and death.^[61] In these cases, it was suggested, a family or other affected party should be able to bring the claim on behalf of the deceased person.

10.66 Similarly, the Domestic Violence Legal Service and the North Australian Aboriginal Justice Agency argued that

Family members of the deceased should be able to bring an action, for example, children of a deceased parent who is the subject of sexually explicit material posted online.^[62]

10.67 The ALRC recommends a general principle of non-survival of the action, considering that in circumstances where a family member of an affected party experience an invasion of privacy in their own right, this will give rise to a separate action.

10.68 The Law Institute of Victoria submitted that remedies could be limited to ‘those that protect the deceased’s identity, for example, to allow corrective orders and declarations but not damages’.^[63]

10.69 The Australian Privacy Foundation argued that a court may consider the financial circumstances of a deceased defendant when awarding remedies against their estate.^[64] However these considerations would require valuation of a deceased’s estate, and may lead to lengthy and costly legal disputes over the administration and distribution of a defendant’s estate, tying up the estate and leaving creditors and beneficiaries waiting many years for distribution.

International consistency

10.70 Limiting the action for statutory invasion of privacy to living persons would, generally speaking, bring Australian law into line with international privacy law.^[65] PIAC noted, however, the exception of French law which allows family members to bring civil privacy actions on behalf of a deceased relative.^[66] An example is the 2007 case of Hachette Filipacchi Associés (Paris-Match) v France.^[67]German and Italian law also allow some protection for the privacy interests of deceased persons.^[68]

Representative and class actions

10.71 Several stakeholders raised the issue of representative or class actions, arguing that the availability of these mechanisms in the new statutory tort would strengthen access to justice.^[69]

10.72 The ALRC makes no recommendations on the availability of representative or class actions, as the ALRC considers existing court mechanisms would apply to the statutory tort in the same way they apply to other civil actions. For instance, Part IVA of the Federal Court Act 1976 (Cth) provides a framework for representative proceedings to the Federal Court. Rules also exist relating to representative and class actions, as well as the appointment of litigation guardians in circumstances where an individual does not have the capacity to commence or defend legal proceedings.^[70] This would include the availability of litigation guardians for minors.

10.73 The Australian Securities and Investments Commission Act 2001 (Cth) provides for a court to make orders that apply to a class of ‘affected individuals’, even where those individuals are not subject to the proceedings.^[71] In consumer class actions or data breaches where plaintiffs can be easily identified, such a provision may well be useful. However, in the highly personal context of invasions of privacy, identifying relevant or affected parties to a representative action may be difficult.

10.74 The Law Society of NSW Young Lawyers’ Committee on Communication, Entertainment and Technology recommended vesting power in the OAIC to bring actions on behalf of a deceased person.^[72] This approach would require significant reform of the Privacy Act including, but not limited to, broadening the powers of the OAIC to consider privacy matters beyond information privacy and removing the various exemptions to the Act. It may also conflict with the independent and impartial role of the OAIC as conciliators of privacy complaints.

10.75 The Office of the Public Advocate (Queensland) submitted that the ALRC should consider ways to accommodate a litigation guardian to conduct legal proceedings on behalf of an adult with impaired decision-making capacity.^[73] The ALRC also considers that this is an important issue concerning access to justice, but that it requires broader consideration than its application just to the new tort. At the same time as this Inquiry the ALRC is undertaking an inquiry into equality, capacity and disability in Commonwealth laws. That inquiry is considering, among other things, the role of litigation guardians in civil proceedings. Its recommendations will have relevance to any new statutory cause of action for serious invasion of privacy.^[74]