Kicking the Digital e-Bucket: The Regulation of Posthumous Digital Remains

Date01 January 2015
AuthorRebecca Keating
Kicking the Digital e-Bucket:
The Regulation of Posthumous Digital
A corpse in some respects is the strangest thing on earth. A man who
yesterday breathed and thought and walked among us and has passed
away. Something has gone. The body is left still and cold, and is all
that is visible to the mortal eye of the man we knew. Around it cling
love and memory. Beyond it may reach hope. It must be laid away.
And the law—that rule of action which touches all human things—
must touch also this thing of death.1
The above quote expresses the constant struggle in the relationship
between the law and decedents. The legal distinction between the living
and the dead proves crucial in practice. The law commands all aspects of
acknowledgement, sovereignty and the completion of the affairs of the
deceased.2 In this, the law constitutes the highest arbiter in the fate of the
dead and their legacy left on earth. Many posthumous legal challenges of
the twenty-rst century are currently outside of the law’s control. Little
provision is made for the legal transition between the living and the dead.
The rise of social media accounts, and consequently the daily increase of
social media accounts held by decedents, is a frontier issue which tests
the boundaries of this traditional division. The broad use of social media
means that we will be remembered after we are gone by the extra-legal
combination of our persisting living image and the actions and interests
of those who follow us. The law has a role in arbitrating the affairs and
control of the remains of the dead. Mark Zuckerberg, CEO of Facebook, at
the Dow Jones D8 Conference spoke of how the legal challenges to social
media made Facebook “at the forefront of these unsolved issues.3 The law
is currently at the precipice of these “unsolved issues”. For this reason, this
article will focus on social media accounts held by decedents and the related
problems of a lack of regulation.
1 Louisville & NR Co v Wilson, 51 SE 24 (Ga 1905), p.25
2 Desmond Manderson, Courting Death: The Law of Mortality 1st edn (Pluto Press,
3 Mark Zuckerberg, Dow Jones D8 Conference June,…/
mark-zuckerberg-d8-full-video [Accessed 24 November 2013]
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The Regulation of Posthumous Digital Remains 161
The article will rst address existing practices which protect posthumous
interests. The second section of the article will address the current law in
this area. Finally, a proposed framework for regulation will be considered.
Existing Practices Which Protect Posthumous Interests
A large body of work exists which makes the argument that the dead have
no rights at all, arguing that there exists little to commend the theory of
posthumous harm and interests.4 The regulation of posthumous social
media accounts may seem like a stark development if one accords to this
body of work. In reality, a far more complex discussion exists, which does
not suggest that decedents hold no rights at all, or that they should be
afforded as wide a variety of rights as the living. There is a wide range
of posthumous interests that survive death in a philosophical sense. The
realisation that an individual has an interest in a certain course of events
after death does not necessarily result in a legal protection of that interest.
The law’s purpose is to choose between these interests and endow those
chosen interests with legal recognition.5 The legal recognition of rights of
the dead on an international level varies greatly, both in respect of which
countries recognise particular rights and their reasons for doing so.6 One
of the greatest difculties is deciphering which party will benet from
the recognition of such rights. This issue arises whether such rights are
posthumous interests or if the decedent benets as a by-product of the right
of a living individual.
It is important to distinguish between posthumous rights and those of a
living, legal rights holder. Smolensky highlights that it is easy to think that
the law is granting a posthumous right because the decedent is receiving
a benet, but in reality the decedent is only a third-party beneciary.7 It
is submitted that Smolensky’s proposition is perhaps too simplistic an
approach in respect of the practical division between the two. The division
between who benets from a right can be quite blurred in most cases, even
those rights that solely benet groups of the living. In respect of claims
involving decedents, defamation law has recently changed in Irish law to
allow a defamation action, incurred during the life of an individual, to
continue for a period after death.8 Arguably, this could be rationalised as
continuing the life of a claim that benets the family of the deceased but
this also serves to preserve the living image that was created by the decedent
4 James Stacey Taylor, “The Myth of Posthumous Harm” (October 2005) 42(4)
American Philosophical 311
5 Kirsten Rabe Smolensky, “Rights of the Dead” (2009) 37 Hofstra Law Review 763,
6 John Bowker, The Meaning of Death, 1st edn (Cambridge University Press, 1993)
7 Smolenksy, supra note 5, p.265
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