Protecting post-mortem privacy: reconsidering the privacy interests of the deceased in a digital world

Lilian Edwards, Edina Harbinja

Research output: Contribution to journalArticle

Abstract

Post-mortem privacy is not a recognised term of art or institutional category in general succession law or even privacy literature. It may be termed the right of a person to preserve and control what becomes of his or her reputation, dignity, integrity, secrets or memory after their death. While of established concern in disciplines such as psychology, counselling and anthropology, this notion has till now has received relatively little attention in law, especially common law. We argue that the new circumstances of the digital world, and in particular the emergence of a new and voluminous array of “digital assets” created, hosted and shared on web 2.0 intermediary platforms, and often revealing highly personal or intimate personal data, require a revisiting of this stance. An analysis of comparative common and civilian law institutions, focusing on personality rights, defamation, moral rights and freedom of testation, confirms that there is little support for post-mortem privacy in common law, and while personality rights in general have greater traction in civilian law, including their survival after death, the primary role taken by contract regulation may still mean that users of US-based intermediary platforms, wherever they are based, are deprived of post mortem privacy rights. Having establshed a crucial gap in online legal privacy protection, we suggest future protection may need to come from legislation, contract or “code” solutions, of which the first emergent into the market is Google Inactive Account Manager.
Original languageEnglish
Pages (from-to)101-147
Number of pages47
Journal Cardozo Arts and Entertainment Law Journal
Volume32
Issue number1
Early online date17 Nov 2013
Publication statusPublished - 2013

Keywords

  • personality rights
  • privacy law
  • rights of the deceased

Cite this