Dead Ringers? Legal Persons and the Deceased in European Data Protection Law

34 Pages Posted: 18 May 2020 Last revised: 19 May 2020

See all articles by David Erdos

David Erdos

University of Cambridge - Faculty of Law; Trinity Hall

Date Written: May 13, 2020

Abstract

Notwithstanding suggestions that the treatment of legal and deceased person data during European data protection’s development has been broadly comparable, this paper finds that stark divergences are in fact apparent. Despite early fusion, legal persons have been increasingly seen to have lesser and, more importantly, qualitatively different information entitlements compared to natural persons, thereby leaving European data protection with a very limited and indirect role here. In contrast, natural persons and the deceased have not been conceived as normatively dichotomous and since the 1990s there has been growing interest both in establishing sui generis direct protection for deceased data and also indirect inclusion through a link with living natural persons. Whilst the case for some indirect inclusion is overwhelming, a broad approach to the inter-relational nature of data risks further destabilizing the personal data concept. Nevertheless, given that jurisdictions representing almost half of the EEA’s population now provide some direct protection and the challenges of managing digital data on death continue to grow, the time may be ripe for a ‘soft’ recommendation on direct protection in this area. Drawing on existing law and scholarship, such a recommendation could seek to specify the role of both specific control rights and diffuse confidentiality obligations, the criteria for time-limits in each case and the need for a balance with other rights and interests which recognises the significantly decreasing interest in protection over time.

Keywords: companies, data protection, confidentiality, personal data, privacy, sole traders, testamentary interests, reputation

Suggested Citation

Erdos, David, Dead Ringers? Legal Persons and the Deceased in European Data Protection Law (May 13, 2020). University of Cambridge Faculty of Law Research Paper No. 21/2020, Available at SSRN: https://ssrn.com/abstract=3599852 or http://dx.doi.org/10.2139/ssrn.3599852

David Erdos (Contact Author)

University of Cambridge - Faculty of Law ( email )

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Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://www.law.cam.ac.uk/people/academic/d-o-erdos/5972

Trinity Hall ( email )

University of Cambridge
Trinity Lane
Cambridge, CB2 1TJ
United Kingdom

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