In the digital age, the fate of personal data after death remains a captivating enigma. What becomes of our digital lives, encompassing cherished memories and online activities once we pass away? Are there post-mortem digital rights that offer us privacy and control over our data? Why is this topic of such paramount importance?
This insightful exploration delves into the realm of post-mortem data privacy, unravelling the intricate web of questions surrounding the protection and control of personal data beyond the grave. Personal data, in this context, refers to the information that identifies individuals or can be used to identify them, regardless of its sensitivity. This may include digital footprints, such as search history, emails, social media posts, and cloud-stored files. The continued existence of these digital footprints long after death raises significant concerns regarding privacy, data protection, and the rights of the deceased.
The importance of post-mortem digital rights cannot be overstated. Our digital identities, carefully constructed and nurtured throughout our lives, persist long after we are gone. These digital footprints encapsulate our memories, experiences, and connections, serving as a digital legacy for future generations. The protection of post-mortem digital rights ensures that the privacy and control individuals enjoyed during their lifetime extend beyond death. It acknowledges the profound impact of personal data on our lives and recognizes the ethical and legal implications of its handling after death. With the increasing prevalence of digital technologies and the growing number of digital natives, addressing post-mortem data privacy rights becomes imperative to safeguard privacy, preserve legacies, and navigate the evolving landscape of the digital world.
The recognition and protection of post-mortem digital rights present a complex and evolving legal and ethical landscape. While legal systems historically deny the dead any rights, there is a growing acknowledgement of the importance of respecting the wishes of the deceased and the impact on the living. This insight examines the theories of rights and interests in relation to the post-mortem period, explores current post-mortem data protection legislation, discusses evolving policies in social networks, and calls for comprehensive measures to safeguard post-mortem privacy and data protection.
Importance of Post-mortem Privacy
Privacy after death carries significant importance in today's digital age. It encompasses the protection of personal information and digital assets that individuals accumulate during their lifetime. Safeguarding data privacy after death ensures that sensitive information, such as financial records, personal correspondence, and online accounts, remains secure and inaccessible to unauthorized individuals.
Respecting data privacy after death also acknowledges the potential for posthumous exploitation or misuse of personal information, which can have lasting consequences for the deceased's reputation, the well-being of their loved ones, and even implicate others in sensitive matters such as the disclosure of genetic health data or hereditary conditions. Additionally, data privacy after death plays a crucial role in preserving the individual's digital legacy, allowing their personal and online presence to be remembered and managed according to their wishes.
Post-mortem Rights
Many legal systems attest to the dead having no rights, yet the law spends much effort in following the wishes of the dead regarding property, organ donation, and burial, alongside numerous cultural norms that strive to respect the dead.
The first point of departure is the theory of rights. Will theory and interest theory are the immediate candidates. According to the will theory, the human capacity to make choices is crucial for individuals’ personality. However, some argue that since the dead cannot exercise their wishes, they should not have legal rights.
On the other hand, the living has wishes that relate to what happens after they die. These desires, such as burial requests and property instructions, bring immediate satisfaction and peace of mind to the living. While not every wish should be considered a legal right, reasonable desires of the living regarding post-mortem conditions should be recognized as legal rights, provided they pass an objective reasonability filter. Recognizing the living's reasonable wishes may affect the living and denying them may harm them.
The interest theory of rights recognizes legal rights where one's interest is "a sufficient reason for holding some other person(s) to be under a duty." Not all interests should be entitled to the status of rights, and some interests continue to hold posthumously, such as one's reputation.
Ultimately, it is not clear whether the law should protect post-mortem right. The rights of the living-now-dead may conflict with the legitimate interests or rights of the living, requiring balancing. Some rights, such as political and civil rights, are irrelevant to the dead, while others, such as personal rights like privacy, pose more difficult questions.
Current Post-mortem Data Privacy Legislation
Post-mortem data privacy rights vary across the world, with different countries adopting diverse approaches and regulations to address the protection of personal data after an individual's death. While some nations have not explicitly addressed this issue, others have enacted specific legislation to safeguard post-mortem privacy, leading to a range of practices and policies worldwide.
United States: In the United States, post-mortem data privacy rights vary by state, as there is no federal legislation specifically addressing this issue. Some states have introduced laws that grant limited post-mortem privacy rights, while others do not have explicit regulations in place.
Canada: Canada has a patchwork of provincial and federal laws that may touch upon post-mortem data privacy. However, there is no comprehensive national legislation specifically dedicated to post-mortem data protection.
Australia: In Australia, post-mortem data privacy rights are largely unregulated at the federal level. The country does not have specific legislation addressing this issue, although there may be some limited protection under existing privacy laws.
Japan: In Japan, the Personal Information Protection Act does not cover post-mortem data privacy explicitly. However, there are cultural norms and practices that generally respect the privacy of the deceased.
In the EU, current post-mortem data protection legislation displays a diverse landscape among member states, as the General Data Protection Regulation (GDPR) allows for the extension of national legislation to protect specific aspects of a deceased person's personal data.
Bulgaria recognizes the rights of heirs to access personal data after the death of the data subject.
Estonia has adopted an IP-like model in its Data Protection Act, granting individuals the freedom to decide on the use of their personal data with their consent.
Italy's Data Protection Code takes a wide approach, allowing any interested entity to exercise rights related to personal data concerning a deceased person.
France has introduced the "Loi Pour Une République Numérique" that regulates the protection of data of deceased data subjects, giving them the right to make decisions on their data processing post-mortem through "preventive narration."
The Swedish and UK Data Protection Acts explicitly refer to personal data of living individuals, rather than post-mortem data protection.
Evolving Policies in the Social Network
After exploring the theoretical aspects of post-mortem data privacy, including the relevant laws and regulations, we will now turn our attention to the practical implementation of these principles, with a particular focus on social media.
It is worth noting that while companies may retain your social media accounts, email accounts, and photos in the cloud for extended periods, often not governed by data protection laws, many well-known social media platforms have recognized the significance of post-mortem data privacy and have developed specific policies to address this concern.
Facebook provides an option to remember an account after the user's death. This can be requested by a close friend or family member, who will need to notify Facebook. While the user's login information will not be shared, Facebook will add a "remembering" badge to the user's profile. The content on the profile remains visible, but it will no longer be suggested in public searches or friend recommendations. As a user, you can choose a legacy contact who will have the authority to make changes to the account, such as accepting friend requests, pinning tribute posts, and changing the profile picture. You also have the option to delete your account instead of having it memorialized.
Instagram's policy regarding the death of a user is similar to Facebook's, as both platforms are both owned by the same company. Anyone can request to have an Instagram account memorialized by providing proof of the user's death. Once memorialized, the account will not look appear different from other accounts, but its privacy setting will be fixed and cannot be altered. The account can also be completely deleted, but Instagram will require official proof of death, such as a death certificate.
Twitter provides the option to deactivate a deceased user's account. This requires a request to be submitted by a family member or power of attorney along with proof of identification and proof of death. Before accepting any requests to remove specific tweets or images, Twitter will take into account public interest factors such as newsworthiness.
Snapchat's policy for dealing with the accounts of deceased users is not as detailed as that of other social media platforms. The company expresses condolences to the bereaved and offers assistance in any way possible via its "Contact Us" page. However, it does not allow access to the deceased user's account. Instead, Snapchat will delete the account upon receipt of a death certificate. If a user wishes to have someone else manage their account on their behalf, they will need to provide that person with their login credentials.
YouTube's policy regarding deceased users' accounts is similar to the parent company, Google. Google account holders can use the "inactive account manager" tool to choose what happens to their accounts after a specified period of inactivity. Options include shutting down the account or sending specified data to selected contacts. Family members or a power of attorney can also request to deactivate the account, provided they can prove their identity and provide a death certificate.
As such, it could be concluded that some companies may own and transfer your data to third parties, potentially keeping it indefinitely. Outdated digital account data can be used for fraudulent activities, such as creating new accounts or impersonating people. Blockchain technology and data portability may assist in retaining control over our data during our lives and planning for its disposal after our death. It may be time for businesses to consider how to keep information after an account becomes inactive.
Conclusion
Many legal systems attest to the dead having no rights, yet the law spends much effort in following the wishes of the dead regarding property, organ donation, and burial, alongside numerous cultural norms that strive to respect the dead.
The first point of departure is the theory of rights. Will theory and interest theory are the immediate candidates. According to the will theory, the human capacity to make choices is crucial for individuals’ personality. However, some argue that since the dead cannot exercise their wishes, they should not have legal rights.
On the other hand, the living has wishes that relate to what happens after they die. These desires, such as burial requests and property instructions, bring immediate satisfaction and peace of mind to the living. While not every wish should be considered a legal right, reasonable desires of the living regarding post-mortem conditions should be recognized as legal rights, provided they pass an objective reasonability filter. Recognizing the living's reasonable wishes may affect the living and denying them may harm them.
The interest theory of rights recognizes legal rights where one's interest is "a sufficient reason for holding some other person(s) to be under a duty." Not all interests should be entitled to the status of rights, and some interests continue to hold posthumously, such as one's reputation.
Ultimately, it is not clear whether the law should protect post-mortem right. The rights of the living-now-dead may conflict with the legitimate interests or rights of the living, requiring balancing. Some rights, such as political and civil rights, are irrelevant to the dead, while others, such as personal rights like privacy, pose more difficult questions.