Post Mortem Privacy?

Certainly until a couple of decades ago, this was a problem for those known or "famous" people on whom information records were kept for their own "public" activity. However, today, social networks receive huge amounts of information from the millions of users they have around the world. We are constantly posting what we think, our photos and sometimes our day to day in general, without thinking about what will happen to all that information after our death.

Facebook thought of this by giving the option to designate a contact to take care of your account, or otherwise delete it permanently. However, this section is not limited to this option. Ultimately, there are many new questions to answer in this regard. For example, can there be privacy of the deceased?

Certainly, the logic of the control of information and personal data is designed so that a person can decide on them, it is about having control over that information and exercising it. That is the concept of informational self-determination. Obviously, after death, this control over information cannot be exercised. The only thing that could apply is that the person in life has left instructions on the control of their information. What if this does not happen? What should be the standard treatment based on respect for people's privacy?

What about all the information that I stored in the cloud? What about all the emails that I exchanged throughout my life? Should they be removed, do they now belong to the public domain, or are they from the one who could have access to my accounts? There are still more questions than answers.

A specific case: the documentary "Roadrunner" dedicated to the late Anthony Bourdain, includes 45 seconds of audio in which an artificial voice reproduces what he wrote in a private email prior to his death in 2018. Although that voice has been "artificial "It certainly was very similar to that of the well-known" chef, "according to the director of the documentary, Morgan Neville:"if you watch the movie, besides that line you mentioned, you probably don't know what the other lines are that were said by the AI ​​and you won't know", he pointed The New York Times.

On the other hand, the information on the email they use is not information that he has authorized for subsequent reproduction (less in a work of mass dissemination), it is said that his wife authorized it, but she later denied via twitter that this is true. . So where is the consent? Where is the power to control your information? If it is that you can no longer grant it, then it is not necessary to obtain it? Privacy is extinguished with death?

A possible answer? According to JCBuitelaar"if the ontology of the discursive and textual human is characterized by being composed of threads of information and (2) this principle would justify granting human rights to human beings, then (3) if the ontology of post-mortem existence is also characterized by threads of information, The conclusion can be drawn that the post mortem ontology also deserves to grant to this existence human rights such as human rights based on human dignity. Therefore, this ontological approach helps to subsequently provide a basis for recognizing the right to privacy of post-mortem persons."[1].

[1] BUITELAAR, JC, “Post-mortem privacy and informational self-determination”, 2017, pp: 140. https://link.springer.com/content/pdf/10.1007/s10676-017-9421-9.pdf

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Marilú Lazo
Lawyer from the Pontificia Universidad Católica del Perú (PUCP). Director of The Crypto Legal Blog, she has experience in corporate advice, consumer protection, as well as in matters of personal data protection and new technologies.

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