Do zombies have a right to privacy?

Print Friendly, PDF & Email

Suppose that after you die someone gets hold of your Facebook login, and publishes a book of all your chat transcripts. You’d be pretty annoyed if you happened to be a zombie at the time, and somehow got wind of that publication.[1]

Death sometimes changes the law that applies. Zombies are dead (obviously). Does the death of a person end the right to privacy? Or could a zombie sue for invasion of privacy? The answer isn’t very clear.

The usual starting point for privacy rights in New Zealand – the Privacy Act 1993 – isn’t any help. That Act deals only with “Personal information”. “Personal information” means information about an “identifiable individual”. “Individual” means a natural person, other than a deceased natural person.[2] A zombie is therefore not an individual for the purposes of the Privacy Act.

But privacy also forms the basis of a tort called the invasion of privacy. Perhaps that could be used to help our zombie (or deceased estate) stop the spread of private information.

However, there is a very old latin rule: “Actio personalis moritur cum persona” – which means “personal actions die with the person”. The rule stopped an estate for suing for pre-death things like battery, trespass and slander. The tort of invasion of privacy wasn’t around then, but it is definitely a “personal” action that would qualify.

The reason for the rule was that (at least back then) executors were representatives of the debts and goods of the deceased, but not of their physical or emotional injuries, and therefore whether an executor could sue depended on whether there was financial loss.[3]

In 1936, the New Zealand Parliament passed the Law Reform Act 1936. Section 3 effectively overruled the actio personalis rule:

Subject to the provisions of this Part, on the death of any person after the passing of this Act all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate: provided that this subsection shall not apply to causes of action for defamation or for inducing one spouse to leave or remain apart from the other.

Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person – 

  1. shall not include any exemplary damages

(And a bunch of other stuff)

In English:

Regardless of whether you want to sue a person, or a person wants to sue you, the death of that person doesn’t matter.

Rule 1 doesn’t apply to defamation. You can’t sue an estate, and an estate can’t sue you, for defamation.

Damages to punish (as opposed to damages for compensation) aren’t available.

The intention was to ensure that (in light of a rise in vehicle-related deaths at the time) a person’s estate could still sue for things like negligence and wrongful death. Effectively that meant that the right to sue for physical and emotional injuries could pass to the executors.

Section 3 makes it clear that where a personal wrong is committed against someone while alive, then that person’s executors can still sue if the person dies before they get a chance to do so themselves.

Before section 3 was enacted, the actio personalis rule prevented any personal action (like invasion of privacy) cropping up in relation to post-mortem events simply as a matter of logic. But with section 3 in place, there’s no specific rule that addresses post-mortem events.

In the absence of any specific rule, the law is unclear. I think there’s a good case to be made for certain personal actions to be available post-mortem, and that invasion of privacy is one of them:

Social media accounts are in widespread use. There’s no uniformity between providers in terms of dealing with those accounts after the user has passed away.

A deceased person’s family and executors may have different views about access, availability and storage of personal and private information, to the views of the service provider.

The persistent availability of information on the internet gives rise to problems we didn’t face 100 rules ago when the actio personalis rule applied and prevented post-mortem personal actions.

Point three is particularly significant. For example: 100 years ago, there wasn’t much of a problem with anybody (apart from an executor) obtaining access to a deceased’s private journals. Any journals were the property of an executor.

Now we are in an age where third parties (like Facebook) can keep some very private information indefinitely. For example, Facebook’s licence to personal data – including chat logs, photos, messages and “likes” –  doesn’t end on the person’s death. Someone could guess (or find) our zombie’s password or Facebook could be hacked, and the zombie’s private information released. It would be good if the law provided a remedy, despite the lack of any (living) person to complain about the wrong.

It seems to me that in such a case there would be no bar to a zombie (or deceased estate) using the tort of invasion of privacy to obtain an injunction.[4] Although that’s not to say that such a claim would succeed. Hat tip to @lawgeeknz who reminds us that it’s difficult to succeed on a invasion of privacy case, and maybe even more difficult for a zombie.

Footnotes

[1] Ignore whether a zombie has the capacity to form views about invasions of personal privacy.

[2] Section 2.

[3] Peter Lovelass The Law’s Disposal of a Person’s Estate Who Dies Without Will or Testament (11th ed, Thomas Davison Whitefriars, London,1823) at p26.

[4] Apart from the fact that a zombie would entirely lack the mental capacity necessary to sue.