Protecting Post-Mortem Privacy: Reconsidering the Privacy Interests of the Deceased in a Digital World

47 Pages Posted: 20 May 2013 Last revised: 29 Mar 2014

See all articles by Lilian Edwards

Lilian Edwards

University of Newcastle - Law School

Edina Harbinja

Aston University

Date Written: November 10, 2013

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.

Keywords: privacy, personality rights, deceased

Suggested Citation

Edwards, Lilian and Harbinja, Edina, Protecting Post-Mortem Privacy: Reconsidering the Privacy Interests of the Deceased in a Digital World (November 10, 2013). Cardozo Arts & Entertainment Law Journal, Vol. 32, No. 1, 2013. Available at SSRN: https://ssrn.com/abstract=2267388 or http://dx.doi.org/10.2139/ssrn.2267388

Lilian Edwards (Contact Author)

University of Newcastle - Law School ( email )

Newcastle upon Tyne, NE1 7RU
United Kingdom

Edina Harbinja

Aston University ( email )

United Kingdom

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