R.I.P.: Rest in Privacy or Rest in (Quasi-)Property? Personal Data Protection of Deceased Data Subjects between Theoretical Scenarios and National Solutions
Data Protection and Privacy: The Internet of Bodies, edited by Ronald Leenes, Rosamunde van Brackel, Serge Gutwirth & Paul De Hert (Brussels, Hart, 2018)
21 Pages Posted: 9 Jun 2018 Last revised: 22 Jun 2018
Date Written: March 30, 2018
The protection and management of personal data of deceased person is an open issue both in practical terms and in theoretical terms. The fundamental right to privacy and to personal data protection (as well as secondary legislation, as GDPR) seems inadequate to cope with data of deceased data subjects. Accordingly, data controllers might be free to process data of deceased subjects without any guarantee. It might have an adverse affect not only on memory and post-mortem autonomy of deceased people, but also on living relatives.
Different theoretical solutions have been proposed: post-mortem privacy (based on post-mortem autonomy) and the analogical application of copyright law or of inheritance law (data as digital assets). Actually the concept of “quasi-property” (from common law jurisprudence) might also prove interesting since it is an inalienable bundle of rights that protect deceased persons.
Some EU member states already provided different solutions for data of deceased people. In particular, we will compare four examples: Estonian Data Protection Law (that we call the Copyright model), Italian Data Protection Law (the "Kantian" model), the new French “Loi pour une République Numérique” and the Catalan law on the “digitals voluntats” (that we compare to advance healthcare directives).
The general issue of post-mortem data protection solution is the "problem of the subject" (there is no interest to be protected, no narrator to represent that interest dynamically): the French and Catalan solutions actually solve this issue through anticipated directives and a delegate person that should implement those directives. Accordingly, the analogy between personal data of deceased persons (as life-transcending digital body) and human body of deceased persons (or of persons in persistent vegetative state) seems particularly relevant.
The proposed solution is a combination of post-mortem privacy and quasi-property of the bereaved persons (descendants, heirs) "on the digital body" of the deceased person.
Keywords: personal data, privacy, deceased data subjects, post-mortem privacy, quasi-property, posthumous data
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