Online life after death faces legal uncertainty

Different jurisdictions set different rules for what should happen to online personal data after death

By Loek Essers, IDG News Service |  Internet

When people die in the real world, their online alter egos may live on, creating an unusual situation for those who only knew them through their online presence. The law is only beginning to address this limbo state, and fragmented privacy legislation provides no conclusive answer to the question of who should be allowed to access or delete someone's social networking profile or email correspondence after they die, a panel discussion at the Amsterdam Privacy Conference concluded.

When a Facebook user dies and Facebook is informed of the death, the company "memorializes" the profile, hiding features such as status updates, and allowing only confirmed friends to view the timeline and post on the profile.

Maintaining access to such a profile helps in the mourning process, said psychologist Elaine Kasket, who presented a paper on life after death on Facebook at the conference on Monday.

"Visible conversation with a person who died and about person who died is important in the grief process," she said.

But while that may be important to Facebook friends, the family might think otherwise. If a friend for instance posts a picture on the deceased's profile showing them drunk and passed out on the floor during a party this might give solace to the poster, but family members could want to remember them in another way, said Kasket.

A wall post like this could prompt the family to ask Facebook to remove the whole profile, and in that way re-traumatize close Facebook dealing with the death, who then have to go through a second shock when they realize that the profile too is gone, said Kasket.

This raises questions about how online personal data should be handled after someone dies, but there is no conclusive answer to that in current legislation, said Edina Harbinja, a PhD student at the Law School of the University of Strathclyde.

There are laws that concern online life after death, but they are fragmented and differ by country, said Harbinja, who studied different European laws on the subject.

In Bulgaria for instance, the heirs of the deceased can exercise the rights of their family member, she said. In Estonia, meanwhile, if someone gives their consent to the processing of their personal data by an online service, that consent is presumed valid for 30 years after their death, unless they indicate otherwise during their lifetime. "Conversely, in Sweden and the U.K., personal data is defined as something that belongs to the living, said Harbinja.

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