Introduction
The digital era has reshaped the boundaries of debates on the protection of personality and privacy of the dead. Whether the dead have a right to privacy and how this might be managed are urgent and vital questions. In order to explore this emergent space, a team of researchers from Aston, Newcastle University and the University of Southampton organised a workshop on 19 April 2021, inviting academics, practitioners, policymakers and experts from the fields of psychology, philosophy, sociology, politics, education, death studies, media studies, feminist science, human-computer interaction, law and technology studies.
Throughout our discussions, it became clear that despite coming from different fields of study, jurisdictions and experiences, this is a growing issue, with many of the challenges encountered revealing common themes and difficulties which need to be addressed. In this article we have synthesised the debate to outline the current state of play in relation to post-mortem privacy and personality and to act as a call for future research, collaboration and action.
Intersection and entanglement of legal regimes
Post-mortem privacy intersects with a plethora of legal regimes, in both civil and common law jurisdictions. In discussions around digital remains (both monetary and personal), privacy is often wrongly juxtaposed to property only and other relevant legal and social considerations are often neglected. Some jurisdictions, for example France, have taken a more proactive stance on post-mortem data protection, creating a system for the collection and storage of data after death, while other regimes overlook the issue entirely (such as England).
Further consideration should be given as to whether current legal principles are well suited to deal with issues of post-mortem privacy and personality rights, or digital legacy and digital remains more broadly. In this context we do not just mean privacy but also the issues around property, intellectual property, contract, succession, data protection, human rights, criminal law, conflicts of laws and jurisdiction. Law often looks at problems in binary – as a conflict between two parties – whereas, in reality, there often other stakeholders that need to be taken into consideration such as the wider societal interests of preservation and heritage. Here other paradigms, for example the law of organ donation, provide a useful point of contemplation and comparison.
Interdisciplinarity
From the above, it is clear that the law alone cannot solve all of the issues at hand. Interdisciplinary treatment of post-mortem personality and privacy is critical to developing the conversation both philosophically and practically. In particular, there is a need to be mindful that the common vocabularies used regularly in reference to issues surrounding post-mortem privacy – such as death, grief, self, AI – are in constant flux and contain different contextual meanings. It is also important to evaluate how post-mortem privacy might sustain heteronormative and patriarchal inequalities and hierarchies that are implicit in legal systems. Furthermore, we often focus solely on legal and technological challenges in post-mortem privacy, which means we can overlook the very real social, relational and even spiritual components of the digital afterlife. Perspectives from the Global South and differing approaches on the preservation of the dead and management of the digital afterlife are therefore essential to expand this conversation.
Power of digital platforms
Our lives now have a profound dependence on cloud storage and digital platforms. Yet, the misuse of data by these very platforms (for example with the Facebook-Cambridge Analytica scandal) has lessened public trust in them. With that comes the need to scrutinise the increasing corporate control over our posthumous data and the preservation of digital remains. What mechanisms (for example, the court system, legislation, new regulatory bodies) can we use to regulate how platforms deal with our data? And how might this regulation be scalable given the transnational reach of technology companies? Is there a need for a more democratic style of data governance that relies on the principle of solidarity and intergenerational equity, such as data cooperatives?
The relationship between the dead, data bodies and wider society
The dependence on cloud-based platforms creates tensions in the relationship between the data of the dead, data bodies and society. Currently, data is heavily centralised and is under the control of a few commercial operators. In such situations there are several different (and often competing) interests at stake – from the government to the user and the tech company. Each will have different priorities but whose voice is heard? The contractual nature of the relationship between the parties often does not deal with post-mortem privacy matters. Where it does, the contractual provisions do not reflect the reality of social norms, or the practical experiences of users who may use informal workarounds to access the data of loved ones (for example, through password sharing) which may be forbidden under contract.
Wider questions emerge as to the creation of frameworks that will map across the different areas, particularly where debates about ethics, access and ownership of data arise – matters which do not align well in digital environments. The importance of the public interest in whether digital remains should be preserved or not is acknowledged but requires greater conceptual clarity. We also need to consider the relationships with past and future generations – and what the collective digital memory will be in the future.
Addressing the challenges of harming the dead & dealing with grief
Longstanding philosophical problems revolve around notions of whether we have a duty of care or can cause harm to the dead. Whilst convincing philosophical arguments have seemingly been developed in this area, there is a disconnect here with how we encounter the dead. Some actions may feel instinctively intrusive or harmful to the dead, but whether this should be translated into law is another matter. The relational harm to surviving family members and others, along with the chilling effect on the living caused by the knowledge that there is a lack of post-mortem protection, are also of relevance.
There are further implications in terms of information and assets left behind, and further discussions to be had in this area.
Simultaneously, there needs to be an acknowledgement that there is no ‘ideal’ way to grieve, nor can there be adherence to the notion that tech can help or hinder the process, with a more nuanced understanding beneficial to all. Whilst several platforms have introduced memorialisation and legacy features, their appropriateness and effectiveness are questionable. Should such functions lie within the responsibilities of service providers/platforms, which serve to provide constant reminders and create a potential tension between posthumous privacy and commemoration? During their lifetime people tend to curate their digital presence but to what extent can this be extended post-mortem? Should there be a role here for the right to be forgotten and does de-linking go far enough? The applicability of temporal decay is also of relevance: does or should this apply online or is the nature of digitalisation such that digital remains can live on beyond physical means?
The dead living on
A recurrent theme, related to the idea of memory, was the potential for the dead to “live on” beyond death. Whilst the private (self-conscious) self arguably disappears on death, the public self (objective manifestation, ‘informational body’) remains. These complexities also mean that there are real implications for the living, with the dead continuing to “live on” alongside the living, with their digital embodiment a part of how we encounter each other in everyday life. It is not only our memories that are at stake but the relationship with those still alive. What the dead leave behind impacts upon the living and the matter of access needs to be separated from archiving as they are two different concepts. A further consequence is that the data of the dead cannot be treated as independent of the living, and until the web reaches a greater level of decentralisation, offers more effective data portability or clarifies ownership over data, this is unlikely to change. Digital re-use through animations, deepfakes, chatbots and avatars raise difficult questions about their legal, ethical and sociological nature and the levels of engagement that need to be put in place between the physical body and such re-uses. On the one hand, these can be seen as a form of ‘frozen self’ (as the person as they were until the time of death), albeit without human agency or autonomy which are integral to our legal or political understanding of personhood. On the other, they may be understood as a form of interactive photograph/video/robot and in that sense less significant from a moral and legal stand point. Ethical debates can become particularly complex when approached from a historical/archival perspective (for example holograms created of Holocaust survivors to tell ‘their’ story) as opposed to those created for commercial/entertainment purposes.
Suggestions/actions
1. Digital assets to be characterised in law as property, where appropriate
Whilst the nature of digital assets remains in a state of flux, viewing patrimonial assets such as digital currency and copyright as property would be a “quick fix” to address some of the challenges faced. This would be particularly useful in relation to accessing data after the death of a loved one, for example photographs stored on a cloud service. Currently access to such platforms lacks clarity and can be difficult to obtain (to access Apple services requires a Court Order), so to consider such assets as property would enable executor access.
2. Conceptualising digital remains and digital legacy more clearly in theory and law
Related to the above point, a clearer understanding of the concepts of digital remains and digital legacy – in both theory and law – would help. For example, an understanding that not everything digital is an asset or property, along with a greater comprehension of information that is highly personal, and how these areas should be treated.
3. Greater clarity as to how personal representatives can access data after death
From a practical perspective, greater clarity/simplicity in law for personal representatives to access (or potentially delete/transport) data from platforms after death would be helpful. The US Revised Uniform Fiduciary Access to Digital Assets Act (RUFADA) provides some potential solutions, but there are further discussions to be had revolving around the relevant rights of users and social concerns.
4. Technological options available for users to plan for the disposition and protection of digital remains (not just digital assets)
More options are needed to allow users to forward plan for their digital remains on death. Presently they are few and binary offering only the potential to delete or preserve. Individuals may wish to filter assets for transmission, deletion or preservation to a variety of different people, including non-traditional heirs such as friends, but death causes a radical context collapse. Thought needs to be given to how a more selective way of passing on information and assets can be effected, including using technological mechanisms such as intelligent agents to interpret the wishes of the deceased.
5. Eliminating the taboo
In general, there seems to be a profound reluctance to discuss or make plans for the personal management of digital remains/digital legacy. Indeed, research suggests that the privacy paradox – the gap between users’ stated preferences to protect their privacy and their actual behaviour – extends to the consideration of post-mortem privacy. Even in scenarios where users might be interested in sharing their personal data posthumously, they often do not make adequate provisions to do so.
Practitioner experience has also demonstrated that it remains an onerous and costly process for heirs to get control of certain digital assets, such as access to iCloud storage. It is therefore necessary to break down the taboo surrounding death online and make this conversation both relatable and equitable, so people are able to engage and plan for how their data is managed post-mortem. Whether these discussions happen will often be dependent on the knowledge of the family lawyer, when triggering events such as marriage, having children or nearing death spawn such conversations. More accessible guidance and toolkits will be required while institutions such as libraries might provide safe learning spaces to engage with these issues, along with developing guidance and awareness for the legal profession. A further question relates to whether platforms should have a duty to nudge users to start such discussions.
6. Education/awareness
As discussed above, education and awareness of such matters is an important step forward, with the potential that within 50 years there could be more people dead than alive on social media platforms. Data after death is a difficult topic to broach and an area where existing guidance is lacking. Starting conversations now would help to resolve problems post-mortem, particularly as in death, a radical context collapse happens. Here, there is also a role for nudges, particularly on social media platforms, to serve as reminders to legacy requests/access in the future. Greater awareness is also important from a wider societal/public interest perspective, one example being preventing cybercriminals from using a deceased person’s data and accounts.
7. Greater transparency required
Researchers have encountered challenges in accessing and sharing data from platforms so there is an urgent need for greater transparency. These challenges revolve around:
a. Access to transparency reports – to understand what platforms are doing in this area and the user engagement with various tools provided. Researchers should be able to access information about the uptake of services such as Facebook Legacy Contacts and Google Inactive Account Manager (e.g. akin to copyright take down notice reports).
b. Transparency as to what platforms do or enable with users’ accounts and data after death – requiring more transparency in respect of Terms of Service and how data is dealt with. Research carried out by the Queen Mary University ‘Beyond the Clouds: What Happens to Data Stored in the Cloud after you Die?’ found that 75% of contracts did not address what happened when the user dies.
8. Digital archives and public interest
Maintaining public interest in digital archives as a ‘global public good’. The wealth of data amassed on platforms should not be owned and effectively locked up by private companies after death: there is a strong public interest in these archives for future generations.
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This position paper is a result of the “Emerging Technologies, Privacy Law and the Dead” workshop, funded by the Modern Law Review. The workshop was facilitated by members of the Leverhulme-funded research group “Modern Technologies, Privacy Law and the Dead”, which include Dr Edina Harbinja and Dr Marisa McVey at Aston University, Dr Remigius N. Nwabueze, Professor Uta Kohl and Dr Holly Hancock at the University of Southampton, Professor Lilian Edwards at Newcastle University.
This document is based on discussions and suggestions from a virtual workshop held on 19 April 2021.
The workshop included a range of contributors and other invited participants representing academia, practitioners and policymakers.
Chairing the discussions:
- Prof Lilian Edwards, Newcastle University
- Prof Michael Birnhack, Tel Aviv University
- Prof Uta Kohl, University of Southampton
- A/Prof Jed Brubaker, University of Colorado
- Prof Maggi-Savin Baden, University of Worcester
- Prof Elaine Kasket, University of Wolverhampton, Author of ‘All the Ghosts in the Machine’
- Dr Edina Harbinja, Aston University
- Dr Remigius N. Nwabueze, University of Southampton Our contributors included:
- Dr Jonathan Brown, law, University of Strathclyde
- Lucien Castex, law, Secretary-General of Internet Society, France and researcher at Université Sorbonne Nouvelle
- Prof Heather Conway, law, Queen’s University, Belfast
- Dimitra Kamarinou, law, Cloud Legal Project, Queen Mary University
- Dr Vasileios Karagiannopoulos, law and criminology, digital forensics and evidence, University of Portsmouth
- Prof Elaine Kasket, psychology, University of Wolverhampton, author of ‘All the Ghosts in the Machine’
- Dr Tamara Kneese, feminist science and technology studies, social media, online mourning practices, University of San Francisco
- Felicity McMahon, barrister, 5RB
- Dave Michels, law, Cloud Legal Project, Queen Mary University
- Prof Christopher Millard, law, Cloud Legal Project, Queen Mary University
- Dr Tal Morse, media and communication, Hadassah Academic College
- Dr Carl Öhman, ethics, Uppsala University,
- Dr Stacey Pitsillides, design, death and bereavement, Northumbria University
- Prof Barbara Prainsack, politics, sociology, biomedicine, University of Vienna
- Leigh Sagar, barrister, New Square Chambers, STEP Association
- Prof Burkhard Schafer, law, philosophy, AI, University of Edinburgh
- A/Prof Patrick Stokes, philosophy and technology, Deakin University
The four sessions of the workshop focused on:
- Historical developments, the current state of the law and regulation
- The impact of technology on digital privacy and individual and collective memories
- The theoretical and social justifications for the protection of memory and privacy of a person after death; and
- Conclusions and recommendations on emerging law and technology for the protection of post-mortem privacy and personality
This position paper was prepared by Dr Marisa McVey and Dr Holly Hancock.
