(2013) 10:1 SCRIPTed 1–139

Issue DOI: 10.2966/scrip.100113

Cover image

  • Post-mortem Privacy
    Nayha Sethi

    The image was inspired by the idea that in an ever-evolving technological world, when we are buried, it is more and more difficult for our secrets and for that which we wish to remain private to be buried and to stay buried with us.

Editorial

  • Post Mortem Privacy
    Lilian Edwards, pp.1-6
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    Professor Lilian Edwards provides an introduction to the dedicated section on Post Mortem Privacy.

Dedicated Section on Post Mortem Privacy

  • Access to the Digital Self in Life and Death: Privacy in the Context of Posthumously Persistent Facebook Profiles
    Elaine Kasket, pp.7-18
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    Digital-age phenomena pose a myriad of challenges to the management of privacy, and one such phenomenon is the posthumously persistent Facebook profile, created and regulated by an individual during life but repurposed after death as a site of mourning, memorialisation, and continued communication with the deceased. Combining observations about the phenomenology of the digital being with psychological theories concerning privacy regulation and bereavement, five characteristics of Facebook profiles judged salient to the management of privacy in the posthumous context are identified and discussed. These include their current popularity and dominance as a vehicle for self-representation and communication; their dynamic nature; their co-constructed nature; their facilitation of personal privacy regulation; and their potential durability. It is suggested that (a) the ontology of a Facebook profile may mean that conceptions of privacy as being about individuals’ rights and decisions are inappropriate to the modern social networking context; (b) that attempts to manage privacy that involve removal or retention of Facebook profiles by mourners have a potentially significant impact upon the bereavement experience, particularly that of friends who seek to maintain continuing bonds with the deceased; and (c) that the issues raised should be considered by academics and researchers, by Facebook, and by lawmakers in the evolving area of digital assets and legacy.
  • Does the EU Data Protection Regime Protect Post-Mortem Privacy and What Could Be The Potential Alternatives?
    Edina Harbinja    , pp.19-38
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    This article aims to shed some light on post-mortem privacy, a phenomenon rather neglected in the legal literature. Acknowledging the quite controversial nature of the phenomenon and certain policy and legal arguments pro and contra, the paper explores the data protection (informational privacy) aspect of the issue. More precisely, the focus is on the distinction between the current and the newly proposed data protection regime in the European Union (EU), assessing how these regimes are susceptible to protecting the deceased’s personal data. The paper will note the differences between the proposed text of the Data Protection Regulation Proposal and subsequent amendments. Moreover, the paper will assess which solutions are more suitable to enable incorporation of the post-mortem privacy in the data protection regime, acknowledging the overall lack of certainty regarding the finalisation of the Regulation’s content. In so doing, this paper aims to detect elements in the new regime that seem to be promoting, at least theoretically, the propertisation of personal data, while partly disregarding its human rights basis. Having this assumption in mind and noting the difference between property, liability and contracts regimes (e.g. transmission on death), it will be argued that the new regime, at least in theory, could be perceived as promoting post-mortem privacy and, under certain circumstances, enabling better control of deceased people’s personal data. The paper, however, does not support this change and suggests that post-mortem privacy should be contemplated within the human rights-based regime.
  • Private But Eventually Public: Why Copyright in Unpublished Works Matters in the Digital Age
    Damien McCallig, pp.39-56
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    Digital life is no longer only concerned with online communication between living individuals; it now encompasses post-death phenomena of inheritance, legacy, mourning and further uses of our digital remains. Scholars and practitioners seeking an appropriate legal theory to claim, control and recover the digital remains of the dead and protect post-mortem privacy interests have identified copyright as a possible surrogate.
    This article explores the links between copyright and privacy in unpublished works. It charts the historical development of perpetual copyright protection in unpublished works, reviews the reasons why perpetual protection for unpublished works has been abolished and analyses some of the privacy impacts of these changes. It argues that without perpetual copyright protection and the surrogate privacy protections in unpublished works, the fear that one’s digital remains will eventually be opened to societal scrutiny may lead to the fettering of personal and private communication, while alive, and may promote the deletion of one’s digital remains in contemplation of death.
    This could have perverse consequences, denying family and friends mementos, including access to shared memories of those who have died, and may also deny future historians and generations access to the materials of history. Therefore, it is argued that any regulation of digital remains must recognise the privacy interests of decedents and reconcile them with the interests of surviving family, heirs, friends and wider society.
  • Disaster Victim Identification in the Information Age: The Use Of Personal Data, Post-Mortem Privacy and the Rights of the Victim’s Relatives
    Jan Bikker    , pp.57-76
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    The digital age as we know it nowadays has not only transformed the way we communicate, bond and form relationships with each other, but has also created a digital world in which we are no longer anonymous anymore. The fast growth and advances in digital technology and on-line services have left many areas of research still unexplored, particularly related to post-mortem privacy following a disaster. In the immediate aftermath of a disaster, unmoderated footage and photos of the scene and/or deceased may be circulated across the globe before even the emergency services or media have reached the site. It is now easier than ever to learn about the victims and their personal lives due to advances in handheld mobile technology combined with ease-of-access to on-line social networking services (SNS) and micro-blogging technology. Although those advances may be used by next-of-kin actively searching for their missing relatives, they can also easily be exploited by trollers, scammers and the media.  The paper’s aim is to raise of awareness of post-mortem privacy-related themes associated with disasters and in particular the issues affecting the deceased and needs of the surviving next-of-kin. The author’s field of expertise is in the identification of victims of disasters, and as such the issues of post-mortem privacy raised here will not be discussed and analysed from a purely legal perspective, although reference to legislation will be made where relevant. Rather, this paper is intended to provide an in-sight into privacy themes relating to the interests of victims experienced in global disasters, whether survivors, the deceased or next-of-kin.

Reviewed Articles

  • Public Service Broadcasters or Government Mouthpieces – An Appraisal Of Public Service Broadcasting in Botswana
    Tachilisa Badala Balule, pp.77-92
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    Public service broadcasting is a critical component of modern democratic societies. These broadcasters are expected to serve the general public interest by providing for the informational needs and interests of citizens in order to empower them to participate in public life. A public service broadcaster is therefore a national asset that must be independent of both political and commercial pressures in the performance of its mandate. The institution must never be used as a government mouthpiece whereby it will only serve the interests of the government of the day. A public service broadcaster thus requires a particular legal framework and certain structural attributes to enable it to execute its mandate effectively. This article examines public service broadcasting in Botswana and interrogates the question of whether or not the legal and policy framework in the country recognises this concept, and if so, whether or not the framework in place is appropriate for the effective delivery of a true public service broadcasting mandate.
  • Enhancing Data Protection and Data Processing in the Public Sector: The Critical Role of Proportionality and the Public Interest
    Gillian Black and Leslie Stevens, pp.93-122
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    Data protection in the public sector has suffered from a number of high profile breaches over the last decade, revealing a culture of weak compliance, especially in comparison with that in the private sector. This article examines certain factors which make public sector data processing distinct, and how the lack of clarity regarding the routes to legitimate processing may be exacerbating these problems. By closely examining the jurisprudence regarding Schedule 2 of the Data Protection Act 1998, which provides the legitimate bases for data processing, we reveal the current problems public sector data controllers face in determining whether their processing is “necessary” and therefore legitimate. We determine that the test of necessity is reliant on proportionality, requiring the interest in processing the personal data to be balanced against the data subjects’ data protection and privacy interests.  This in turn requires a detailed consideration of the public interests at stake, in providing the public services and respecting the personal data involved.  We conclude by providing a structured and coherent three-step test for data controllers to apply in reaching their decision.  This test focuses on the critical issues in balancing the competing interests, enabling data controllers to take a principle-based decision as to whether or not their processing is indeed in the public interest, proportionate and necessary – and therefore ultimately legitimate.  This three-step test offers greater clarity for data controllers, which in turn should enhance the rigour of their data processing, thereby strengthening the data protection culture and benefiting data controllers, data subjects, and the public at large.

Reports

  • Privacy From Birth To Death And Beyond: European And American Perspectives. Symposium Report
    Dr. Ciara Hackett  and Ursula Connolly, pp.123-128
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Book Reviews

  • A Human Right to Participate in the Information Society
    By Alan McKenna
    Reviewed by Mariona Rosell Llorens    , pp.129-132
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  • Exclusions From Patentability 
    By Sigrid Sterckx and Julian Cockbain (ed)
    Reviewed by Maureen O’Sullivan     pp.133-135
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  • Individualism and Collectiveness in Intellectual Property Law 
    By Jan Rosen (ed)
    Reviewed by Tania Sebastian    , pp.136-139
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