Roth, Paul --- "Privacy proceedings and the dead" [2004] PrivLawPRpr 31; (2004) 11(2) Privacy Law and Policy Reporter 50

• Privacy Proceedings And The Dead

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Privacy proceedings and the dead

Paul Roth

It is normally accepted that in law, deceased persons have no privacy interests. This is presumably on the basis that the raison d’être for privacy protection no longer exists, since dead people can feel no shame or humiliation. The underlying common law principle here is much the same as in the law of defamation, which in most jurisdictions does not countenance civil actions that seek to vindicate the reputation of the dead. Such post-mortem privacy interests as do receive protection are very limited and have their basis either in professional ethics (eg, the confidentiality of the doctor-patient or lawyer-client relationships) or specific legislative provision (eg, New Zealand’s Health Information Privacy Code, which protects the health information of deceased persons, and a number of recent US state laws that prohibit the use of deceased persons’ names and likenesses for a specified period). Consistent with this general approach, a case recently decided by the New Zealand Human Rights Review Tribunal held that even where a Privacy Act complaint has been fully investigated while the complainant was alive, proceedings in respect of such a complaint cannot be lodged in the Tribunal after the complainant’s death.

In Yakas v Kaipara District Council (Human Rights Review Tribunal, Decision No 10/04, HRRT 20/03, 16 April 2004), the plaintiff died after the Privacy Commissioner completed his investigation into her complaint. She was being represented in the proceeding by her son, who signed and filed her Notice of Intention to Bring Proceedings. The complainant had wanted to find out the identity of the person who complained about her dog to the local district council. The council refused to disclose this information on the grounds that it did not have the information, and that even if it did, it would be entitled to withhold the information on the basis of s 29(1)(b) of the Privacy Act (the “evaluative material” exception).

Although the plaintiff’s son contended that on the date he signed the Notice of Intention to Bring Proceedings his mother was still alive, but unable to sign any documents, the Tribunal found that the Notice was signed some weeks after the mother’s death. The Tribunal noted that the son also filed a form in which his mother confirmed the son’s authority to pursue the proceedings in the Tribunal on her behalf, but there was no information given to the Tribunal to establish that the son was formally responsible for the administration of his mother’s estate.

The defendant council made two submissions. Firstly, it contended that the claim was not brought by “an aggrieved individual” in terms of s 83 (“Aggrieved person may bring proceedings before Human Rights Review Tribunal”) because the plaintiff was not alive when the claim was commenced. Therefore, the Tribunal had no jurisdiction to deal with it. Secondly, and in the alternative, any cause of action that the plaintiff might have had under the Privacy Act could not be pursued by her estate after her death.

The Tribunal accepted the defendant’s submission that “section 83 limits the right to bring proceedings in the Tribunal to ‘aggrieved individuals’ in such a way as to ensure that proceedings are brought by individuals on their own account, and that the right to bring proceedings exists only for those individuals who are alive at the time the proceedings are commenced” (para 11). The Tribunal noted that the definition of “individual” in s 2 refers to “a natural person, other than a deceased natural person”.

On the facts as found by the Tribunal, the proceeding was commenced after the mother’s death. The Tribunal did not treat the date on which the Notice of Intention to Bring Proceedings was signed as the date of commencement of the proceedings. This was because “the papers even if signed can simply be retained by a plaintiff without filing” (para 12). The Tribunal went on to hold that:

“... the very earliest date on which it might arguably be said that a proceeding has been commenced is the date on which the papers are sent to the Tribunal to be filed. Even so (and, we make it clear, without deciding that the date of posting is the date of commencement), it seems clear in this case the papers were posted after the plaintiff had died.” (para 13)

The Privacy Commissioner concurred on this point.

In the result, the Tribunal found that the claim in this case had not been brought by an “aggrieved individual” in terms of s 83 of the Privacy Act. Accordingly, it dismissed the case. In a separate costs decision (Decision No 30/04), the mother’s estate had $1,250 costs awarded against it. Although this case did not proceeded to a substantive hearing and the usual pre-hearing steps had not been taken (eg, no discovery, no exchange of witness briefs), the successful defendant was put to the expense of having to file a statement of reply to the claim and prepare written submissions on the jurisdiction issue.

Comment: It seems wrong in principle that causes of action under the Privacy Act should be barred by death. The interpretation of the relevant provisions of the Privacy Act offered in this decision would seem to lead to such a result, but an alternative interpretation is also possible. The words in s 83 that seemed to suggest to the Tribunal that the “aggrieved individual” must personally bring the proceedings on his or her own account (“Notwithstanding section 82(2), the aggrieved individual (if any) may himself or herself bring proceedings”) can alternatively be taken to stand in contrast to the position in s 82(2), which refers to the bringing of proceedings by the Director of Human Rights Proceedings.

If this alternative interpretation is accepted, then the words no longer suggest that proceedings may only be brought personally by living individuals, but might also be brought on behalf of individuals who were alive when the cause of action under the Privacy Act accrued. Were the position otherwise, as was held by the Tribunal, this would have the perverse effect of giving potential defendants an incentive to drag their feet as much as possible and not cooperate with Privacy Commissioner investigations. Moreover, the legal position as found by the Tribunal renders the existence of the Privacy Commissioner’s long queue before complaints are investigated under the Privacy Act quite objectionable, as it is unjustly prejudicial to the vindication of the rights of the old and infirm. Indeed, the practice of maintaining a long queue could even amount to indirect discrimination against those groups, given that the Tribunal has found that death extinguishes any claim.

There seems to be no obvious and compelling reason, however, to treat causes of action accrued under the Privacy Act any differently from those that arise under the common law or other legislation. For example, under the Employment Contracts Act 1991, personal grievances could still be raised on behalf of employees who died before submitting their grievances, so long as the cause of action had accrued. Thus, in the New Zealand Court of Appeal case Transmissions & Diesels Ltd v Matheson [2002] NZCA 63; [2002] 1 ERNZ 22, where the employee committed suicide the day after his employment terminated, the executor of the employee’s estate successfully brought a common law damages claim for constructive dismissal and a claim for unjustified dismissal under the Employment Contracts Act, even though the language of the legislation indicates that the employee must first submit the grievance to the employer.

Paul Roth is an Associate Professor of Law at the University of Otago