Book Chapter: The ‘New(ish)’ Property, Informational Bodies and Postmortality

Abstract

This chapter examines the concept of digital assets from an angle that has not yet been explored in legal scholarship around digital death and the transmission of digital assets on death. Digital death is conceived herein as the death of an individual who leaves behind various digital fragments of their identity, either in the form of digital assets broadly or as digital biographies, dossiers, autobiographies and archives. Digital death causes uncertainty as to what happens in this dispersed, interconnected and often unregulated digital space, which Kasket lucidly entitles The New Elysium.

Most legal scholars have considered digital assets either from a perspective of ‘hard law’ of succession and probate or the intersection of property, contracts and intellectual property; sometimes referring to data protection, jurisdiction or cybercrime. The scholars have not ventured into exploring theory that goes beyond theories of property, intellectual property and privacy.

The chapter begins by examining classical conceptualisations of digital assets as property and the ‘”new” new property’, exploring whether this is the correct way to perceive digital assets conceptually. It will then go on to examine post-mortem privacy in the context of digital assets, and introduce a novel link with the Floridian concept of informational bodies. In the attempt to offer a comprehensive framework and a more nuanced normative support for future policy and law, the chapter interrelates all of the concepts with the ideas of postmortal society, introducing a new concept of ‘postmortal privacy’. Finally, the author uses this conceptualisation to test some of the existing legal regimes in the area of the transmission of digital assets. Suggestions from this chapter remain mainly at an abstract level, due to the scope and the nature of the framework it introduces.

Keywords: postmortem privacy, immortality, digital property, digital death, postmortal privacy