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The politics of postmortem privacy
Mauricio Figueroa
TL;DR
Postmortem privacy is recognized, but its boundaries and applications remain unsettled across legal and cultural contexts. This paper examines that instability across three analytical loci and concludes that its diversity reflects unresolved tensions surrounding dignity, memory, power, and governance.
Problem
Postmortem privacy is recognized, but its scope, normative foundations, and jurisdictional applications remain insufficiently unified.
Method
The paper synthesizes legal scholarship with cultural, social, historical, and political observations across three loci of postmortem privacy.
Results
The analysis identifies transatlantic, intra-European, and Global South tensions, finding the latter largely overlooked and all three expressions of one phenomenon.
Takeaways & Limitations
Postmortem privacy’s diversity reveals an unsettled domain where dignity, memory, power, and governance remain in tension.
Abstract
from arXiv · showhide
While the existence of postmortem privacy is increasingly acknowledged (such as the protection of the presence of deceased within digital spaces), far less attention has been paid to its internal instability: its scope (the extent of its application), justificatory foundations (why do we protect the deceased in the first place), and uneven articulation across jurisdictions (for example, some jurisdictions may tolerate or endorse practices that may be contestable in a different jurisdiction). This piece unearths the internal diversity of the concept by illuminating specific points of tension and conflict that the notion of postmortem privacy evokes. These points of tension are collectively refer to as the politics of postmortem privacy. To do so, this paper organises existing contributions of legal scholarship, placing them in dialogue with broader cultural, social, historical and political observations to illustrate the politics of postmortem privacy through three different loci of analysis: the transatlantic divide between European and American approaches, intra-European tensions within data protection governance, and postcolonial and post-authoritarian contexts in the Global South. While existing literature has glimpsed toward the former two, this piece contends that the latter deserves greater attention and inclusion in the debates around privacy and the dead. The piece explains, in continuity with existing scholarship, how postmortem privacy is assembled differently as a productive register through which societies negotiate memory and dignity, which play a great role in the governance of data of the dead and information flows.
Introduction
The paper examines postmortem privacy as a shared normative and regulatory problem created by the persistence of digital data after death. It analyzes how legal, institutional, political, and cultural forces constitute and dispute the concept across three loci, including an overlooked Global South and postcolonial dimension.
- The emergence of postmortem privacy: Digital data persists across platforms, archives, and databases after death, making postmortem privacy an increasingly unavoidable normative and regulatory problem.This persistence has contributed to the consolidation of postmortem privacy in academic, legislative, ethical, and policy debates.
- Analytical approach: The paper investigates postmortem privacy through the collision of legal traditions, institutional arrangements, political economies, and culturally embedded understandings of death, memory, and justice.
- Three loci of analysis: The analysis identifies three loci: the transatlantic divide between European and American approaches, intra-European tensions, and Global South and postcolonial contexts.The first two loci have received prior scholarly attention, while the third has been largely overlooked.
- Global South and postcolonial tensions: In the Global South, postmortem privacy intersects with memory, truth, and accountability, where demands for visibility may conflict with presumptions of withdrawal or erasure.
- Contribution and structure: The paper treats legal diversity in postmortem privacy regimes as revealing heterogeneity rather than simply indicating a failure of legal uniformity.Its structure introduces postmortem privacy, examines the limits of uniformity, develops the three loci, and concludes by reflecting on heterogeneity.
I. The emergence of postmortem privacy
Historically, legal systems largely denied the dead a claim to privacy. Digital technologies challenge this position because persistent, replicable data can outlive the individuals to whom it is linked.
- I. The emergence of postmortem privacy: Across much of legal history and different jurisdictions, the prevailing response was mostly negative to whether the dead retain privacy.The passage frames this as the earlier legal position.
- I. The emergence of postmortem privacy: Digital technologies reconfigure human lives through the proliferation of digital data.This reconfiguration challenges conventional understandings of privacy after death.
- I. The emergence of postmortem privacy: Digital data can outlive individuals because it resists decay and remains persistently replicable.Such data is closely linked to, and in many cases constitutes, the individuals it outlives.
A. Theoretical foundations
Postmortem privacy has gained normative traction by challenging inherited assumptions that personal rights end with death and by extending autonomy, dignity, and freedom into digital contexts. Its boundaries remain unsettled, as users’ expressed commitments and practical behaviors diverge and the field lacks agreement on when, for whom, and how privacy persists after death.
- Conceptual emergence: Postmortem privacy has emerged through contestation against inherited assumptions about the boundaries of legal subjectivity.Its theoretical and legal acceptance is increasingly recognized but was not automatic.
- Historical foundations: The traditional distinction between transmissible proprietary actions and extinguished purely personal actions underpins the challenge posed by postmortem privacy.Property-related or monetary claims generally survive death, whereas purely personal causes of action do not.
- Digital subjectivity: Digital platforms and storage infrastructures complicate the assumption that the self dies with the body by preserving personal existence in code, networks, and data.The contemporary informational subject therefore exceeds strictly corporeal understandings of human remains.
- Normative foundations: Harbinja’s account grounds postmortem privacy in autonomy, dignity, and freedom as an extension of existing normative commitments rather than an artificial novel right.Related scholarship also examines informational self-determination and classifies digital remains across privacy, property, and intellectual-property dimensions.
- Practical tensions: Surveys in Israel and the UK reveal a divergence between users’ normative commitments and practical behaviors: users want control over digital legacies but few use available tools.Inaction can even prevent users from enabling the posthumous access they desire.
- Conceptual indeterminacy: Postmortem privacy is recognized as a conceptual and normative category, but its substantive boundaries and normative extension remain undefined.The field lacks unified answers about when, for whom, and how privacy interests persist after death.
B. Articulation across different jurisdictions
Postmortem privacy is articulated unevenly across jurisdictions because the GDPR excludes deceased persons while leaving Member States discretion, producing diverse and time-limited protections. Outside Europe, approaches range from fiduciary control and nomination rights to narrowly defined or broader family rights over deceased persons’ data.
- European approaches: The GDPR excludes deceased persons’ personal data but leaves Member States free to regulate the issue domestically, amid longstanding terminological and conceptual diversity.This diversity complicates locating the deceased within a coherent European data-protection framework.
- European approaches: European protection is inconsistent and typically time-limited; Estonia, for example, applies an explicit 10-year limit, while other limits may track a person’s lifespan.No jurisdiction fully and indefinitely extends legal protection beyond death.
- Approaches outside Europe: In the United States, RUFADAA lets users plan digital-data disposition, authorizes fiduciaries to manage digital assets, and permits custodians to mediate access consistently with privacy expectations.The regime treats digital assets and electronic communications similarly to tangible property or financial accounts.
- Approaches outside Europe: India allows a data principal to designate another person ex ante to exercise data-protection rights after death or incapacity, creating a right to nominate.The regime conflates postmortem and incapacity protections.
- Global South configurations: Argentina grants heirs access rights to deceased persons’ data but does not equivalently recognize rights such as rectification, whereas China permits close relatives to consult, copy, correct, and delete relevant information.China’s rights apply for relatives’ lawful and legitimate interests unless the deceased arranged otherwise before death.
- Analytical direction: The paper argues that the urgent issue is not exhaustive comparative legislation but the assumptions and understandings animating divergent approaches.It identifies three loci of tension for examining these dynamics.
A. Situated legalities
Postmortem privacy is incorporated across legal systems without yielding normative uniformity. Its meanings and justifications remain situated in cultural and historical contexts, making legal rules difficult to transplant unchanged.
- A. Situated legalities: Different legal systems incorporate postmortem privacy through different provisions, but legislative convergence does not necessarily produce normative uniformity.Divergent normative justifications may reflect the principle’s richness and the interaction of cultural and historical contexts with law.
- A. Situated legalities: Legal rules are not neutral, portable artefacts, because they express the cultural lifeworlds in which they are situated.The passage contrasts this view with concerns that legal transplants adopted without local demand or familiarity can produce weaker institutions.
- A. Situated legalities: Postmortem privacy’s multiplicity of meanings and rationales parallels privacy’s broader configuration as a cluster of related ideas.Solove’s family-resemblance approach directs attention to how privacy is invoked, protected, and violated in practice.
- A. Situated legalities: A contested subdomain such as postmortem privacy cannot plausibly be expected to travel unchanged across legal systems.Its legal articulation depends on local cultural and historical dynamics rather than abstract portability alone.
B. Lack of stability of the principle
Postmortem privacy is conceptually unstable because legal norms are entangled with cultural practices, institutional histories, and political-economic trajectories. Rather than assuming one normative foundation, the section identifies three loci through which the concept is constructed and contested.
- Postmortem privacy’s instability arises from stakeholder multiplicity and the entanglement of legal norms with cultural, institutional, and political-economic contexts.
- Even where legislation codifies postmortem privacy, textual convergence can conceal deeper divergences within positive law.
- Postmortem privacy remains an unresolved site of tension involving personhood, memory, relationality, and identity beyond death.
- III. Three loci of tensions: The section maps three loci of contestation organized around borders, cultures, and economic logics.
A. Transatlantic divide
European and American frameworks address postmortem privacy through different legal imaginaries rather than converging. European approaches foreground dignity, autonomy, and testamentary choice, while RUFADAA channels governance through fiduciary and contractual structures aligned with platform manageability.
- A. Transatlantic divide: The GDPR leaves space for Member States to extend privacy after death, whereas RUFADAA provides a framework for fiduciary control over digital remains.Together, the models produce a bifurcation rather than convergence in postmortem privacy governance.
- A. Transatlantic divide: European jurisdictions embed postmortem privacy in wills and testamentary directives, foregrounding dignity, autonomy, and freedom of choice.These values cast the deceased as a continuing subject of legal concern, including within inheritance law and civil codes.
- A. Transatlantic divide: The American approach treats digital remains primarily as a contract-driven problem of managing access, externalities, and costs rather than as a question of dignity.Its transactional logic aligns postmortem digital interests with contractual allocation and cost management.
- A. Transatlantic divide: RUFADAA channels posthumous digital governance through fiduciary structures and platform terms of service, privileging procedural ordering and institutional manageability over open-ended dignity claims.Google and Facebook’s formal support for RUFADAA signals alignment between the statute’s architecture and platform interests.
B. Intra-European divide
Within the EU, postmortem privacy remains largely a negotiated and nationally deferred domain despite data protection’s supranational foundations. This arrangement exposes tensions over public authority, private ordering, and which values European data governance foregrounds or leaves unresolved.
- B. Intra-European divide: European legal silences reveal unresolved contestation between public authority and private ordering, keeping postmortem privacy a negotiated space.The legal order’s treatment is significant not only for its declarations but also for what it withholds.
- B. Intra-European divide: EU data protection law, grounded in Charter Article 8 and concretised by the GDPR, leaves postmortem privacy largely to Member State discretion.This structural peripherality marks an epistemological boundary rather than mere procedural convenience.
- B. Intra-European divide: National deferral embeds unspoken hierarchies that foreground autonomy, efficiency, and harm prevention while backgrounding dignity, memory, and legacy.Divergence across GDPR jurisdictions therefore reflects competing value priorities within the European data protection project.
- B. Intra-European divide: The EU’s reluctance to treat death and digital remains as supranational matters reflects their continued anchoring in private and familial spheres.Death has historically been organised through mourning, inheritance, and remembrance, with recognition often mediated through civil-law and inheritance-law frameworks.
C. Global South divide
In the Global South, postmortem privacy remains less developed and becomes a site of friction between collective memory, justice, and historical reckoning and legal regimes built around a liberal individualist subject. Post-authoritarian and postcolonial contexts make preserving and accessing data politically urgent, challenging uniform assumptions that data should recede from public view at death.
- C. Global South divide: Postmortem privacy in the Global South is less developed and brings competing epistemologies of memory, justice, and historical reckoning into friction with liberal individualist regimes.
- C. Global South divide: Colonial and dictatorial control over archives and narratives makes persistent data access a strategic response to historical erasure, not merely a residual effect of trauma.
- C. Global South divide: Truth commissions and families’ documentation practices use postmortem data to constitute collective memory, reconstruct atrocities, and enable political reckoning, even when intimacy is sacrificed.
- C. Global South divide: Argentina’s access-only approach for heirs reflects the concern that deletion could repeat disappearance politics and rectification could reinscribe censorship.
- C. Global South divide: Mexico City’s automatic-deletion rule was declared unconstitutional because it was overly broad and conflicted with constitutional protections for freedom of expression and access to information.
- C. Global South divide: In these contexts, memory is collective, justice generational, and visibility protective against erasure, making the presumption that data should recede at death contested rather than universally applicable.
V. Conclusion
The conclusion argues that postmortem privacy is best understood through divergence and tension rather than harmonisation, emerging from context-specific negotiations rather than a uniform legal recipe. These tensions reflect competing institutional, political, cultural, memory, and restraint-based considerations and are not readily resolved through doctrinal adjustment alone.
- Postmortem privacy’s significance becomes visible through divergence and tension, rather than through efforts to resolve its indeterminacy by harmonisation.
- Postmortem privacy emerges from context-specific negotiations shaped by institutional authority, political economy, cultural understandings of death, memory, and restraint.
- The analysis identifies three loci of contestation showing that postmortem privacy cannot operate as a stable legal recipe capable of uniform application.
- Postmortem privacy remains conceptually undefined yet broadly recognised, and its tensions are unlikely to be settled through doctrinal or interpretative efforts alone.