Why Are You Allowed To Post That?

I know I'm not the only person that gets an overwhelming feeling of confusion when you open your social media accounts and the first photo you see, or in Nipsey's case, the first video you see is of someone being brutally murdered? Does anyone else wonder how Kanye West was able to put the bathroom that Whitney Houston overdosed in on his album cover? Or how the photo of Martin Luther King being shot on the balcony is widely circulated in public news. I mean the list really goes on. The gag of it is, is that there are essentially no privacy laws - or very limited privacy laws - that protect the privacy rights of individuals or celebrities post-mortem. Essentially, these images and videos can just be spread to millions of people without the consent of the person or family in the video. Fucked up right? I think so too.

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Post-mortem privacy is becoming an emerging phenomenon particularly due to a growth in creation, sharing, and acquisition of digital assets. These assets usually include an unprecedented amount of personal data that can be difficult to categorize under the current norms of property law. This unprecedented amount of data and the new circumstances of the digital world, including the increase of digital assets either created or shared on intermediary platforms, require a revisiting of the stance that privacy does not extend post-mortem. Post-mortem privacy is the “right of a person to preserve and control what becomes of his or her reputation, dignity, integrity, secrets or memory after death. Put simply, it concerns the privacy rights of the dead. Post-mortem privacy is a recognized phenomenon in disciplines such as anthropology, counseling, and psychology, but has received little attention within the law – even in privacy literature and succession law. An analysis of common and civilian law institutions – primarily personality rights, the right of privacy, defamation, moral rights, and testamentary freedom - confirms that there is little support for post-mortem privacy in common law.

 

 

Technological and digital advancements within society has created severe fluidity between the right to privacy and the extensive data pooling on which the digital world is based. With all of our personal data being digital, online privacy becomes a much larger issue, with many more stakeholders, including internet users, families, service providers, society at large, and personal friends of the deceased. The new condition of the digital world show an influx of a new capacious variety of digital assets created, hosted and shared on intermediary platforms. Digital assets include intangible information goods associated with the digital word, such as social networking profiles, virtual assets, digitized text and images, passwords to various accounts associated with the provision of digital goods and services, domain names, and the myriad of digital assets emerging as commodities that are capable of being assigned worth. Although society has made extensive progress through our digital transformation, we have sacrificed our data privacy along the way. We shifted from moving physical material that makes up a person’s identity around in space to moving bits and bytes of data around in the cloud — and somehow this shift made the data seem less valuable.

 

 

Moral of the Story: Dead people should have rights to their digital assets, which includes photos of their dead body and other photos that they would have held sacred had they been alive. I have 3 recommendations (I'm basically giving Congress all of this knowledge for free and would like to be compensated once I am famous/discovered).

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The first is that freedom of testation (the ability to control how your assets as disseminated after death through a will) translate into the online environment, where digital assets mainly comprise of informational and personal data content. These assets are a counterpart of the offline assets and wealth. Therefore, an individual should be able to exercise his autonomy online and decide what happens to their assets and privacy on death. One of the most obvious objections to extending privacy post-mortem is that the legal life terminates on death and legal personality ceases to exist. Legal personality, however, is relative and varies from a branch of law to a branch of law. Legal personality in some cases, such as the testamentary freedom, does extend on death, even impliedly allowing a deceased person to control their wealth by the wishes they expressed pre-mortem. This shows that although death eliminates an individual from their legal rights and duties, this does not and should not mean that their control, as a fact, over the devolution of his property has ceased. Although he may not be a legal person because he is deceased, the law still permits his dead hand to control. If property is an extension of an individual’s personhood and a necessary pre-condition for its development, then this personhood transcends death same way his property does, through a will. This evidence again supports a proposition that aspects of personality, in this case, dignity, integrity and autonomy, do survive death, sometimes even for an unlimited period. Therefore, because legal personality does extend beyond death, privacy should as well.

 

 

The second is that Congress or the Supreme Court establishes a federal right of publicity law – creating uniformity across the states. Adopting a federal right of publicity law would address many of the issues with inconsistent state laws and the difficulty in determining which law to apply and how to apply it. Federal legislative action would correct the shortcomings of the current scheme, effectively protecting individuals’ property rights while simultaneously placing the proper incentives on potential plaintiffs and defendants. The federal government should enact a federal law similar to the Washington State Legislature. Put simply, the federal courts should amend the WPRA to protect a celebrity’s right of publicity after the celebrity’s death while staying in line with the limitations of the constitution. The legislature could narrow the scope of the WPRA by requiring a nexus between the commercial use of a celebrity’s likeness and the State of Washington. This would allow the heirs of a deceased celebrity to enforce their rights while assuaging Due Process, Full Faith and Credit, and Dormant Commerce Clause concerns.

 

 

I recommend that the courts eradicate the actio personalis doctrine. In the past, the doctrine could be justified “by the vindictive and quasi-criminal character of suits for civil injuries,” but “once the notion of vengeance has been put aside and that of compensation substituted, the doctrine seems to be without plausible ground.” This doctrine not only allows a defendant to unjustly benefit from the unanticipated event of the plaintiff’s death, but rewards unhurried trial tactics that are based on a defendant’s disobliging interests at trials. More importantly, causes of actions for personal torts that have not yet been brought to the court, would still be able to be brought even in the case that the plaintiff is dead. The distinction that the doctrine makes between personal torts and causes of action founded on property rights and contract disputes is already arbitrary, being as though many contractual disputes are as “personal” as many personal tort disputes. In addition to the eradication of this doctrine, I recommend that defamation and other personal tort claims still be allowed to be brought by an individual, as an autonomous person, even after death, as opposed to claims of defamation being brought solely by the estate or potential heirs. Therefore, an individual should be able to exercise his autonomy regarding defamation online and decide what happens to their online assets and privacy on death. Again, one of the most obvious objections to extending privacy post-mortem is that the legal life terminates on death and legal personality ceases to exist. However, with the eradication of the actio personalis doctrine, this would no longer be the prevailing concept regarding the survival of legal personality and personal torts after death. Legal personality in some cases, such as the testamentary freedom, already does extend on death, even impliedly allowing a deceased person to control their wealth by the wishes they expressed pre-mortem. This shows that “though death eliminates a man from the legal congeries of rights and duties, this does not mean that his control, as a fact, over the devolution of his property has ceased. A legal person he may not be, but the law still permits his dead hand to control.” Thus, if property is an extension of an individual’s personhood and a necessary pre-condition for its development, then this personhood transcends death same way his property does. This evidence again supports a proposition that aspects of personality, in this case, dignity, integrity and autonomy, do survive death, sometimes even for an unlimited period. Therefore, defamation and other personal tort claims should be able to extend past death.

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