Lilian Edwards and Edina Harbinja, Post mortem privacy: a comparative perspective

Privacy is the hot topic of the moment in both the EU and US, yet debates around legal intervention to protect privacy have so far in the main been restricted to protecting the living data subject.  Common law jurisdictions such as the US and England and Wales have a long tradition of restricting rights seen as personal to the deceased to enforcement by them during lifetime, hence eg restrictions on bringing libel, personality and emotional distress claims after death by representatives. Civilian legal systems on the other hand are traditionally much more respectful of the interests of the deceased, especially the creator, in preserving their reputation and the integrity of their creations after death. EU data protection laws are generally interpreted not to protect the personal data of the dead,  though a  few countries such as Estonia and Bulgaria have ventured into this territory, and the proposed reforms of the draft DP Regulation make it more not less likely that protection will be restricted to the living.

In the meantime however a parallel slow burning debate has ignited concerning preservation and transmission of emails, social media profiles and other so-called digital assets after death. These issues are largely ruled currently by the law of contract as dictated by standard form service provider terms of service, but judicial and legislative interest is emerging on both sides of the Atlantic. As in paradigm cases such as In re Ellsworth and In re Facebook, digital assets on death disputes  tend to display a patent conflict between the wishes – and sometimes the economic interests of the living – and the privacy rights of the dead.  This paper argues that the debate over the commodification and rights of ownership and control over digital assets on death has the potential to illuminate and ignite a debate over whether privacy interests do and indeed should end or wither on death. The debate will be illustrated with comparisons from the law of personality rights, moral rights, defamation and organ donation.

No. 2005-296, 651-DE (Mich. Prob. Ct. 2005). See discussion in Baldas T. “Slain Soldier’s E-Mail Spurs Legal Debate: Ownership of Deceased’s Messages at Crux of Issue”, 27 Nat’l L.J. 10, 10 (2005)

In re Request for order requiring Facebook, inc. to produce documents and things, Case No: C 12-80171 LHK (PSG), 9/20/201 .