Inheritance of Digital Media

This is a preprint of a chapter accepted for publication by Facet Publishing. This extract has been taken from the author’s original manuscript and has not been edited. The definitive version of this piece may be found in 'Partners for Preservation: Advancing digital preservation through cross-community collaboration' Facet, London, 9781783303472 which can be purchased from http://www.facetpublishing.co.uk/title.php?id=303472#about-ta

Does the EU Data Protection Regime Protect Post-Mortem Privacy and What Could Be the Potential Alternatives?

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

Virtual worlds players – consumers or citizens?

This article questions the preconceived notions that participants in virtual worlds are essentially consumers. Building on the existing scholarship around virtual worlds and notwithstanding the current character of virtual worlds, this paper explores aspects of End User Licence Agreements and notes the unfairness of their provisions, particularly the imbalance between user and developer interests governed by such contracts. It argues that the contracts cannot be regulated with consumer protection legislation, as interests such as property or intellectual property are beyond the scope of consumer protection regimes. Finally, recognising the phenomenon of constitutionalisation of virtual worlds, the article argues for stronger regulatory solutions in this domain, in order to strike a more appropriate balance between competing interests in virtual worlds

Post-mortem privacy 2.0: Theory, law and technology

This paper builds on the general survey of post-mortem privacy set out in the author’s earlier work. The concept of post-mortem privacy is further developed both at a theoretical level (underpinned by theories of autonomy) and a doctrinal level (considering concepts such as testamentary freedom, and the protection of personal data). Finally, the paper looks at some current developments of technology (tech solutions for the protection of post-mortem privacy) and law/policy (work done by the US Uniform Law Commission on the Uniform Fiduciary Access to Digital Assets Act – UFADAA). The argument is that both of these regulatory modalities provide examples and illustrations of how post-mortem privacy can be recognised practically, especially in the online environment. The paper is, therefore, setting the scene further in this under-explored area, also aiming to set the basis for the author’s subsequent empirical research (attitudes towards post-mortem privacy, quantitative and qualitative)

Virtual Worlds – a Legal Post-Mortem Account

This paper addresses the lack of legal literature in the area of death and virtual worlds. It sheds light on the legal status of different in-game assets, assessing whether these could fit within the notions of property or other relevant legal concepts such as intellectual property, usufruct, or easements. Having determined this, the paper goes on to explore the possibilities regarding the transmission of these assets on death. The author does not share views of a great portion of the legal literature arguing for recognition of ”virtual property” as a concept. Rather, this paper proposes an alternative solution in order to reconcile different interests arising in VWs; primarily, those of developers and players. Recognising a phenomenon of consitutionalisation of VWs, this article suggests a solution in the form of servitudes (usufruct). Virtual usufruct is herein conceived as player‟s entitlement to use the VW account and profit from it, if applicable. It is suggested that the entitlement to use the account expires on death, but that it allows a player‟s personal representative/executor to gain access to the account and extract any possible monetary value. This solution would enable players to take more control over their virtual assets and heirs to potentially benefit from valuable VW accounts

Legal Nature of Emails: A Comparative Perspective

There is currently a conflict between laws and the market in their treatment of email. Laws mandate that emails are not protected as property unless copyrightable or protected by another legal mechanism. But the market suggests that emails are user-owned property without further qualification. Moreover, the nature of email is treated slightly differently between the U.S. and U.K. legal regimes. While the current legal regimes applicable to email in the U.K. and U.S. are reasonable, legal harmonization within these systems, and with the service provider market, should be achieved

Post-mortem social media: law and Facebook after death

Edina Harbinja, ‘Post-mortem social media: law and Facebook after death’, in David Mangan, Lorna Gillies, eds., The Legal Challenges of Social Media, (Cheltenham: Edward Elgar, 2017), ISBN 978 1 78536 450 1.Peer reviewe

Protecting Post-Mortem Privacy:Reconsidering the Privacy Interests of the Deceased in a Digital World

Post-mortem privacy is not a recognised term of art or institutional category in general succession law or even privacy literature. It may be termed the right of a person to preserve and control what becomes of his or her reputation, dignity, integrity, secrets or memory after their death. While of established concern in disciplines such as psychology, counselling and anthropology, this notion has till now has received relatively little attention in law, especially common law. We argue that the new circumstances of the digital world, and in particular the emergence of a new and voluminous array of “digital assets” created, hosted and shared on web 2.0 intermediary platforms, and often revealing highly personal or intimate personal data, require a revisiting of this stance. An analysis of comparative common and civilian law institutions, focusing on personality rights, defamation, moral rights and freedom of testation, confirms that there is little support for post-mortem privacy in common law, and while personality rights in general have greater traction in civilian law, including their survival after death, the primary role taken by contract regulation may still mean that users of US-based intermediary platforms, wherever they are based, are deprived of post mortem privacy rights. Having establshed a crucial gap in online legal privacy protection, we suggest future protection may need to come from legislation, contract or “code” solutions, of which the first emergent into the market is Google Inactive Account Manager

Content not available: Why The United Kingdom's Proposal For A “Package Of Platform Safety Measures” Will Harm Free Speech

This article critiques key proposals of the United Kingdom’s “Online Harms” White Paper; in particular, the proposal for new digital regulator and the imposition of a “duty of care” on platforms. While acknowledging that a duty of care, backed up by sanctions works well in some environments, we argue is not appropriate for policing the White Paper’s identified harms as it could result in the blocking of legal, subjectively harmful content. Furthermore, the proposed regulator lacks the necessary independence and could be subjected to political interference. We conclude that the imposition of a duty of care will result in an unacceptable chilling effect on free expression, resulting in a draconian regulatory environment for platforms, with users’ digital rights adversely affected

Your data will never die, but you will: A comparative analysis of US and UK post-mortem data donation frameworks

Posthumous medical data donation (PMDD) for the purpose of legitimate, non-commercial and, potentially, very beneficial medical research has been sparsely discussed in legal scholarship to date. Conversely, quite an extensive social science and humanities research establishes benefits of this practice. It also finds that PMDD enables individuals to employ their altruistic motivations and aspirations by helping them participate in ‘citizen’s science’ and medical research, thus supporting efforts in finding cures for some of the acutest diseases of today. There appears to be no jurisdiction where a regulatory framework supports and enables PMDD. This paper analyses whether and to what extent law and policy should enable this practice. We take a comparative approach, examining the position under both US and UK law, providing the first comparative legal account of this practice. We do not aim to suggest a detailed legal solution for PMDD, but rather key considerations and principles for legislative/policy reforms, which would support the practice of PMDD. We discuss organ donation and provide a comparative outlook with the aim of drawing lessons from this practice, and applying them to the regulation of PMDD. Our analysis is both normative and black letter since we consider arguments regarding the necessity of organ and data donation, as well as the law that regulates these practices