The expectation of privacy has been evolving over the centuries. In previous eras, people enjoyed little privacy, even though information about their private lives hardly used to escape from the confines of their family or community. However, as society developed along with the technological advancement of social media, disseminating information beyond the local community was no longer an impossibility. Privacy has been an area of law that has continuously seen an evolution-based society’s progression. Over the last two decades, in the majority of nations, the evolution of privacy as a right has majorly focused on striking a balance between the public’s right to know and an individual’s right to privacy. In addition to this, nations have exclusively taken into account a viewpoint of privacy of the living, leaving us with a question, if there should be privacy for the dead as well?
Post-humous privacy invokes several ethical, philosophical, moral and legal issues. It has been a topic of debate globally for granting it as a status of the “right” of a citizen. This also brings us to dwell on whether “citizenship” expires post-death. Until the past two decades, mainly celebrities and politicians have been amongst the population whose existence were documented in a manner for whom a reputation emerging through public data was a point of concern. However, with the exponential growth of digital technologies and social media platforms, individuals developed a complex relationship with their personal data available in the public domain. That has now resulted in digital footprints that shall not only outlive them but also those data debris will persist in the online space for years post-death of an individual.
The standpoint of Indian law-making bodies has failed to consider the growing need to bring in post-humous privacy rights. Neither the upcoming bill nor the Indian judiciary has considered the post-humous aspect of privacy. Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) & another v. Union of India specifically limited the privacy rights merely to living human beings, until one breathes last. Hence established that the right to privacy extinguishes along with the person’s life. The primary argument against the recognition of post-humous privacy is the notion that “the deceased cannot be harmed or hurt.” However, this line of reasoning is inconsistent with the principle of freedom of testation. Therefore, denying control to a person over online data on the grounds of no harm caused would be analogous to denying the rights of the testament; as Edina Harbinja quotes, “the deceased should not be interested in deciding what happens to their property on death as they would not be present to be harmed by the allocation.”
While most nations, including India, are yet to discuss the same on the legislative front, some companies have taken initiatives to protect post-humous privacy. Google in 2013 launched ‘inactive account manager,’ and Facebook’s ‘memorialization’ and ‘legacy contact’ are some such examples. However, such solutions have proven to fall short of clarifying the rights of a legacy contact over the rights of kin. Hence, the existence of privacy interests post-death of an individual is still muddled and requires to be explored in detail. One of the generic questions that build upon post-humous data is over its impreciseness on “who owns the data.”
A civilizational question
Currently, no legal protections exist to stop one from getting digitally resurrected. Because of the non-recognition of post-humous privacy, there is no way to ‘opt-out’ of the system and, in turn, to protect the data of the deceased. Nevertheless, at the same time, there is a growing graveyard of deceased, outlasted by digital footprints. A study by Oxford University has claimed that by 2100, Facebook itself will have 4.9 Billion deceased accounts, and by 2070, the dead would already outnumber the total number of living. Hence this bank of data is going to take on an important role for not only historians, anthropologists and sociologists but also for the for-profit organizations that are thriving on human research. Hence, what happens to our data after our death, is a question we may have to answer sooner. Oxford University’s study’s highlight the need for overarching changes, and it raises several pertinent questions such as, Is it time that we should think of appointing social media executors? If our passwords should form a part of our wills and should be explicitly included? Moreover, can our Instagram accounts and their data can become a part of archives and public records in libraries to make future civilizations aware of #OurLivesOurRulz #SquadGoals.
Under the law, the deceased do not enjoy or possess any personal rights even if any false or malicious statement has been made; there exists no legal recourse. Nevertheless, reputation is a component that exists even beyond deaths where the living heirs manage posthumous legacies of the deceased through post-humous. Furthermore, the law duly recognizes intentions in the last will and is defended as a contractual obligation. Airing of embarrassing evidence cannot merely be justified under the transparency umbrella or vicarious drama. Such one-sided robbery of reputation with nobody alive for justifications hurts the deceased individuals and living heirs and, at times, the entire community. Hence, history is not merely gossip about the deceased. Edmund Burke’s in his enduring work, “Reflections On the Revolution in France,” believed society as a partnership that is based on the contributions of living, dead and unborn. This idea brings along the debate on the methodology that furthers to induce historians to interpret personages from the past, even the one that may comprise mortal failings, with similar notions of justice as we extend to the living.
THE ROAD AHEAD…??
There is a reason why we all draft our wills before our deaths and divvy up all of our possessions. These drafts mostly accommodate the claim on tangible and material objects in practice. Hence, making these decisions before death is one way of avoiding arguments over how the deceased person would have dealt with the mentioned objects of the will. However, social media accounts, digital data, records and emails are rarely afforded similar protections. Principally, limiting privacy on death is because traditional notions of the law tie privacy to the life of the right-holder. So, once life ends, privacy rights end simultaneously. However, there might be valid reasonings for limiting privacy as the claimant will not be available to exercise the decisions and rights post-death. At the same time, now, due to technological advancements, we have reached on to a point where our information legacies have extended the boundaries where the impact of information available of deceased can extend on to the life of survivors.
The right to privacy and data protection “for the living population” is already one of the most contested rights in India, and the nation is still in the process of implementing the Personal Data Protection Bill. However, when upcoming legislation is at the implementation and discussion front, the expectations of the legislations being at the “state of the art” level become multi-folds. In the meantime, before countries understand the severity of the claims and extend this right as a subset of privacy rights, social media networks, messaging applications and data collectors, as their social responsibility, must consider an option of “digital living wills.” That would not only bring in a safer online community standard with appropriate mechanisms to accept a choice to delete or memorialize their information upon death but would also bring in the data under data protection regime since the deceased’s data shall have a heir as a legacy owner.
This article has been written by Mr Pulkit Mogra, PhD in Law candidate at the University of Ottawa’s Centre for Law, Technology & Society and an Assistant Professor at University of Petroleum and Energy Studies, India.