Non-survival of the cause of action

Proposal 9–3 A cause of action for serious invasion of privacy should not survive for the benefit of the plaintiff’s estate or against the defendant’s estate.

9.35 The ALRC proposes that a statutory cause of action for serious invasion of privacy be limited to living persons. The ALRC, VLRC and NSWLRC also previously recommended that a cause of action be restricted to living persons.[33] This proposal 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. Actions also cannot subsist against the estate of a deceased person, whether or not proceedings had commenced before the death of the defendant.

9.36 This provision has a similar effect to the provisions of the Uniform Defamation Laws.[34]

Privacy action protects personal interests

9.37 The new tort is intended to remedy the wrong to a person’s dignitary interests. It should therefore be limited to living persons.[35] 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).[36]

9.38 Given the personal nature of a privacy action, the ALRC considers that only the individual who has suffered loss or damage should be able to sue for relief. An action cannot therefore be commenced, or continued, by the legal personal representative of the deceased person.

9.39 The so-called ‘mischief’ to be remedied by a privacy action is the mental harm and hurt to feelings suffered by a living person.[37] 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.[38]

9.40 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.[39] 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.[40] However, breach of confidence actions protect quasi-proprietorial 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.

9.41 Several stakeholders, however, support the principle of the survival of the action.[41] However, even where actions 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 and does not allow damages for pain and suffering and the like.[42]

9.42 Some stakeholders submitted that the action could survive in some specific circumstances.[43] For example, PIAC argued that the action should survive the death of a plaintiff where ‘important systemic issues are involved’.[44] By way of example, PIAC pointed to anti-discrimination complaints which, in NSW, survive the death of a complainant.[45] PIAC suggested that the value of privacy as a matter of public interest is akin to the public value in eliminating discrimination and should thus survive the death of a complainant for the good of all society. It could be argued, however, that any damages payable to an estate for an invasion of the privacy of a now deceased individual are a windfall to the estate and the beneficiaries who may not have been harmed in any way by an invasion of privacy.

Impact on family member’s privacy

9.43 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 has suffered distress caused by the invasion of the deceased person’s privacy while he or she was alive. However, 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. It is important to note that the non-survival of a deceased person’s action does not mean that family members or other parties are unable to pursue their own actions for serious invasion of privacy where they meet the tests for actionability in their own right.[46] 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,[47] or in circumstances where a deceased’s medical record is published to disclose a condition affecting surviving relatives.

9.44 Another example, outlined in PIAC’s submission, is where a so-called tribute or dedication page to a deceased person established on a social media site such as Facebook reveals personal information about a third party.[48] These circumstances may generate a cause of action for the third party. 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.[49]

Representative actions by affected parties

9.45 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 being Aboriginal or Torres Strait Islander, given the specific cultural beliefs of those communities associated with mourning and death.[50] In these cases, a family or other affected party would bring the claim on behalf of the deceased person. However, the ALRC considers that the wrong for which action may be brought is committed against the individuals whose privacy has been invaded.

9.46 There is some guidance at law about representative actions brought by affected parties. The Australian Securities and Investments Commission Act 2001 (Cth), for example, 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.[51] 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.

9.47 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’.[52] The Australian Privacy Foundation argued that a court may consider the financial circumstances of a deceased defendant when awarding remedies against their estate.[53] 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.

9.48 The Law Society of NSW Young Lawyers’ Committee on Communication, Entertainment and Technology recommended vesting power to bring actions on behalf of a deceased person in the OAIC.[54] This approach would require significant reform of the operation 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.

International consistency

9.49 Limiting the action for statutory invasion of privacy to living persons would, generally speaking, bring Australian law into line with international privacy law.[55] PIAC noted, however, the exception of French law which allows family members to bring civil privacy actions on behalf of a deceased relative.[56] An example is the 2007 case of Hachette Filipacchi Associés (Paris-Match) v France.[57]