This week I had the pleasure of attending a presentation at the University of Hertfordshire Law School's Research Seminar Series on Post-Mortem Privacy Rights. The abstract proposed greater controls on the right to privacy upon one's death due to the emergence of the digital age. In response, my colleague and I wrote a response looking at the right to control your privacy once you have died and whether the common law is not equipped to deal with this situations. Generally, we considered there is not a lacuna in common law in addressing post-mortem privacy rights as the medium of computers and the Internet has not truly introduced anything novel, and if it has, the common law is still suitably equipped to handle it. We considered that any changes to the law would only be minimal and should be so, since any interference with the right to tell history should be carefully approached.
Re : Summary of discussion on subject of “death and the common law”
Re : Summary of discussion on “post mortem rights”
Re : The judgment of history
(1) It is clear that the common law did not always apply the maxim “actio personalis moritur cum persona” and in certain cases legal rights arising in lifetime might pass by devolution to the executors or administrators – the obvious cases were property entitlements and some form of contractual rights
(2) It is evident that a distinction has to be drawn between (a) legal rights arising in the lifetime of X which may pass by devolution (b) legal rights that terminate or are extinguished by the death of X (c) legal rights that arise and are created by virtue of death of X
(3) Manifestly to enforce legal rights one must possess “legal personality” and this concept does not prima facie extend to a deceased person (you cannot injure the dead); so in certain circumstances a legislature might allow the executors to enforce devolved rights
(4) In broad terms the common law has evolved by adapting existing legal principles both to new factual situations and to the process of technological change. The common law system starts with an existing principle and seeks a solution consistent with or analogous to the principle already acknowledged by the courts. Whilst common law might struggle with applying law to new mediums (i.e. is data ‘goods’?) this is not, necessarily, a ‘new situation’ for common law. Data has always had the possibility of surviving one’s death, even before computers and Internet.
(5) Manifestly the subject of “death” may engage issues in (a) criminal law (b) the law of tort (c) the law of contract (d) property law in the widest sense (e) intellectual and industrial property law.
(6) Further any legal rights in issue have to be distinguished between (a) those arising by international treaty provision (b) legal rights arising by domestic legislation (c) legal rights arsing by the development of case law (d) legal rights contained within a single written constitutional document
(7) Manifestly it is sensible to draw a distinction between common law systems and civil law systems; in particular between the common law jurisdictions which tend to be sceptical about over stating and inflating abstract principles. The common law judge tends to be more than aware that general propositions do not decide concrete cases.
(8) In the abstract that we were discussing a number of rights were mentioned : it does seem sensible to examine those rights in turn
(9) In respect of the deceased ; the abstract made reference to the following “rights”
(e) secrets – confidential information
(g) personality rights
(i) moral rights
(j) the law of contract
(k) the law pertaining to testamentary freedom
(10). The conclusion in the abstract is that the common law has shown itself to be hesitant about recognising “post mortem rights” but is that so surprising? I leave aside the question that “post mortem rights” appears to be a phrase of rather uncertain definition and may refer to any of the senses noted in (2) and (9) supra
11. The common law developed in the eighteenth and nineteenth century under the direction of judges schooled in classical studies and ancient history. “History” is the oldest of disciplines and traceable to the Ancient Greeks. Herodotus saw the role of history as (a) preserving memory and (b) helping to understand the “causes of things” .There is an understandable desire not to impede bona fide historical research – so that X lives and following death his life is subject to the judgment of historians and others.
12. So if we examine the individual areas listed in paragraph nine.
13 In respect of 9(a) – the concept of “privacy”. It is a matter of common knowledge that English law was slow to protect “privacy”; in the past a claimant might seek to rely on (a) the tort of trespass (b) private nuisance (c) malicious falsehood (d) defamation or (e) the equitable action for abuse of confidence. However even since the coming into effect of the Human Rights Act 1998 the position is less than clear; on the one hand it is said that there is no independent tort of invasion of privacy but on the other relief is accorded for the misuse of private information. The actions brought since 2000 have focused upon a living claimant. Notably, this includes companies, so one may infer that human rights apply to those with legal personality.
A distinction probably needs to be drawn with cases brought after death; the deceased can experience no lack of privacy and the case law in other common law jurisdictions in respect of the deceased has tended to focus on either (a) personality rights (b) infringement of a trade mark or (c) extensions of the tort of passing off. Of interest is the legislation passed in some common law jurisdictions allowing an executor to sanction the use of the “personality” of the deceased for certain commercial activities. It is not a matter of surprise that this is a matter that has been the subject of legislation in California – home of the alpha plus celebrity. Whether it is the presence of a secure legislative provision that has prompted the rise of “posthumous advertising” is for others to say.
14. In respect of 9(b) supra – as regards reputation. A person who dies cannot through his estate bring an action for defamation – as soon as someone is dead the journalist or the historian may write without restraint. However if they do not write fairly then the family of the deceased have a perfect right to correct the record. The friends of a deceased often do so – in this context in England and the United States one should perhaps acknowledge the particular role of the “obituary notice” which serves as a judgment on the deceased. Later a biography may appear and the biographer will be free to express opinions although the law of copyright may prevent him quoting from original material without permission. Reputation is at the mercy of those who survive you. History tells us King John was a womanizer but there is no right of action in the Royal estate to prevent historians from saying so.
15. In respect of 9(c) –the concept of dignity. The criminal law provides for minimum standards of conduct in respect of burials and legislation exists regulating medical research – it is possible no doubt for the executors to bring an action if a photograph of the deceased is taken without permission and there has been a trespass on to private premises. Broadcasting Codes of Practice restrain the transmission of “distressing images”; as we have seen recently editors do not normally show pictures of a person in articulo mortis.
16. In respect of 9(d) supra “integrity” in its widest sense. It is correct that the common law does allow a re-evaluation after death and a writer may probe the character of the deceased free form the constraints of the law of libel. So to take an example a historian may write what he wishes about the late Sir Winston Churchill (1874-1965) – although if he is not a specialist historian his views and opinions are likely to carry little weight.
17. Related to this is are two other considerations :it is beyond dispute that executors may (a) enforce the relevant copyright laws and (b) public authorities may place time limits on the access to public records. So some information may be restrained under these headings.
18 In respect of point 9 (e) supra it is not in dispute that an action can be brought in equity for the abuse of confidential information and while this is normally brought by a person still living it is open to an executor to bring such an action on behalf of the estate of the deceased. Further there are difficulties with complete secrecy on death because a degree of openness may be necessary so that the executors can anticipate any claims that the estate may have to meet. Notwithstanding the fact that of course an action for abuse of confidence can only be brought by the person to whom the duty is owed if such action is seen as in part a tort then doubtless it can be brought by an executor – so it is arguable that in 1965 the executors of Sir Winston Churchill could have sued his doctor
19. In respect of 9 (f) supra it is difficult to determine the sense in which the word “memory” is employed. When X dies he is without memory; his loved ones have a memory but that passes with their deaths. As Herodotus noted the function of “history” is to create a collective memory; in the modern world the obituary notice is often followed by a biography. There is nobody left alive today who met Abraham Lincoln (1809-1865) but our memory of the man is the product of historical research.
20. In respect of 9 (h) supra the defamation laws do not permit an action to be brought after death and the reputation of the deceased is now a matter of history
21. In respect of moral rights alluded to in 9 (i) supra such rights are in the United Kingdom the creation of legislation and the duration is said to expire as stipulated by statute; indeed the Copyright Act 1911, the Copyright Act 1956 and the Copyright and Designs and Patents Act 1988 all stipulate a period of duration that expires x years from the death of the copyright holder. Much, however, depends on what is meant by ‘moral rights’.
22.In respect of 9 (j) supra it is difficult to imagine what is objectionable in the executors seeking to enforce contractual provisions post mortem against an internet provider in respect of contractual rights arsing prior to the death of the deceased. The essence of confidential information is that it should not be available to the entire world; however there seems little harm in requiring that those who contract in their lifetime with a social media network or internet provider should be aware of the contractual position as to what is to happen to any data provided after their death. It would seem in most common law jurisdictions such rights can only arise ex contractu. A duty of care may also be owed to surviving members of the family for harm and distress caused by publication of material, which would indirectly protect the deceased. Certainly, the ability to contract to protect your property after death is by no means a novel situation since the invention of the computer and Internet. By analogy the duties imposed by common law on those holding hard copies of your data would be equally applicable to those holding them online, subject to contract. For example, if you agree to your data being collected and used for commercial purposes then there would be no duty of confidentiality. The principle from Kelly v Cooper would apply, ‘contract first’.
23 In respect of 9(k) supra and the principle of testamentary freedom there are limits in the United Kingdom and of course if a “post mortem” right may be said to arise difficult problems may exist as to whether it should be enforced by the executor or the beneficiary
24 It is relevant in this context to note the common law has tended to favour the free circulation of property and ideas and is reluctant to allow control by the dead hand of the deceased.
25.We make reference to personal data post mortem but how much is truly private after death (a) property information can be searched under the Land Registration Act 2002 (b) the provisions of the Wills Act 1837 provide for some disclosure of the estate of the deceased (c) medical records are protected by statute (d) family relationships are matters of public knowledge not least through the Registration of Births and Marriages legislation(e) in respect of children the court may order disclosures as to paternity (f) the principle of freedom of expression allows those who survive the deceased to write about their relationship (if any) with him or her.
26 If there is to be any extension to post-mortem rights then that involves a policy decision embracing political, economic and social factors and is thus not appropriate for the judiciary but must be regarded in a democracy as the task of the legislature.
27 While it is a matter for others there would seem to be some value in adopting the approach of the Bundesgerichtshof in “the Marlene Dietrich case” in drawing a distinction in personality rights between (a) economic rights and (b) non economic rights. However it would seem that nothing in the judgment prevents an individual producing a biography of the celebrated actress. In respect of the much discussed “Francois Mitterrand case” it is arguable that the same conclusion might have been reached in the courts of England and Wales – since most legal systems find it objectionable that a doctor should write about his treatment of a patient with a terminal condition
28 It would seem to be important to recognise five facts relevant in England and Wales (a) the legislature is anxious not to place restrictions on freedom of the press (b) the legislature is sceptical of extending rights that might be used to shield the rich, famous and powerful from proper scrutiny in a democracy (c) some of the litigation in Europe derives from general rights set out in constitutional documents (d) as is well known there is no single document in England and Wales (e) if one seeks to stand for public office then one’s character and record is a proper matter for scrutiny.
(a) Might it not be said that a possible conclusion is that while there might be a case for legislation to protect “personality” from commercial exploitation it would be contrary to the history of the common law to allow a general protection for reputations post mortem. On death the deceased must trust to “the judgment of history”- the family of Marlene Dietrich have no need to fear the judgment of history. In the case of Gustav Grundgens the litigation did not prevent the subsequent re-publication and filming of the novel enabling a wide audience to make their own judgement on the character and conduct of that talented but deceased thespian.
(b) Some of the cases cited in civil law jurisdictions arise from the interpretation of provisions in a single written constitutional document – something we have until now avoided in the United Kingdom.
(c) If personality rights were to be conferred in the United Kingdom that could only be done by statute and such rights would have to be narrowly drawn so as to prevent bona fide historical research
(d) In the end it would seem that "history" trumps "law" and it was after all a German who noted that "Die Weltgeschichte ist das Weltgericht" - an observation which may be brutal but is not without a degree of truth.
(e) What was sought to be argued in the presentation is that Parliament should enact a limited "post mortem personality right"-while there may be arguments in the case of "economic rights" it must be doubtful whether that should be extended any further. This seems to have been the approach of the legislature in California - which I imagine counts as a common law jurisdiction.
(f) To a common lawyer "The Mephisto litigation" (1963-1971) in West Germany seems somewhat bizarre and in the longer term quite futile
(g) If rights are to be granted after death there are unanswered questions about locus standi.
(h) The concept of life after death through your online profile is interesting and whilst it is more accessible it is not a novel concept since one's profile could always exist after death. However, you are still legally dead, and if you wish to assert control over your social media profile then rights would need to be devolved upon death. This is freedom of contract and something common law has always accepted pre and post digital age.
(I) There must also be a clear distinction between property rights and personal claims. Someone’s ‘commercial image’ can be protected i.e. Freddie Mercury dispute who sought to protect his image from unlawful recreation by those who did not have rights to that image; and distinguished from matters simply concerning the individual. i.e. saying after Jimmy Saville died that he was a paedophile has nothing to do with the rights over that individual’s commercial image. Whether the law would extend to malicious comments made to harm a right over a commercial image, as something alluded to in discussion, might be an avenue but something tort would also address.
(J) Trying to create privacy rights before you are dead would not be an easy task. You set out the pros and cons above, and the general proposition is right that one must take a balanced view to determine which needs are greater: history or the privacy of the deceased. As has been set out English common law favours the former.
 Law Reform (Miscellaneous Provisions) Act 1934 and any future incarnations
 Rights in rem
 Although of course certain “personal” contracts may on death be subject to the common law doctrine of discharge by frustration.
 Of course the common law has had to grapple with the legal concept of “death”
 Actions in defamation
 Which in the strict sense is “post mortem”
 See the original Fatal Accidents Act 1846
 Since one must be alive ; a view taken by the Court of Appeal in Harris v Goddard (1983) 1 WLR 1203
 See Copyright (Computer Software)Amendment Act 1985
 As you noted
 Which arguably terminates on death – in contrast to “personality rights”
 See Younger Cttee (1972)
 Wainwright v The Home Office (2004) 2 AC 406
 Campbell v MGN Ltd (2004) AC 457
 See legislation in California after 1985
 Where a product is sold using the personality of a deceased celebrity – eg Humphrey Bogart (1899-1957); Marilyn Monroe (1926-1962) ;Steve McQueen (1930-1980) or Elvis Presley (1935-1977) t o cite recent examples
 As they often do – see the recent cases of Edward Heath and Leon Brittan
 As the recent controversy concerning Ted Hughes has served to illustrate
 Anatomy Act 1984
 Fraser v Evans (1969) 1 QB 349
 See Copyright and Designs and Patents Act 1988 sections 77-89 ; in particular section 86
 In dealing with the duration of copyright
 In dealing with the duration of moral rights
 Kelly v Cooper 
 See Inheritance Act 1938:Inheritance (Provision for Family and Dependants) Act 1975
 There may be issues in the law of trusts to whether litigation is appropriate and justified
 See the common law rules on perpetuities and accumulations as well as the limits to contracts deemed in restraint of trade
 People have been known to claim an association with the deceased that existed only in their imagination
 A man who in England in public life would have faced much greater scrutiny – although of course we do not have a Presidential system. It is interesting to reflect that three of the individuals in the cases – Mitterrand, Grundgens and Dietrich faced a similar problem – a need at various times to explain conduct during the years 1933-1945
 In the “Mephisto case” – it was as I recall a judgment of the Bundesverfassungsgericht – a case that is unlikely to have been brought in England and Wales. (a) While the divorce from Erika Mann was in the past – it is interesting to reflect as to whether publishers of Klaus Mann might have in England been at risk having regard the principle in Argyll v Argyll (1967) Ch 302 (b) The book had been published outside West Germany before the legal action was brought (c) whether the case has more to do with how Germany came to terms with its past and (d) the role the Mann family made the case unduly sensitive (e) the case appears to have turned more on traditional constitutional law – as set out in Articles 1-5 of the Grundgesetz rather than any specific legislation on intellectual property (f) the subsequent re-publication of the book in the then West Germany indicates that at some point in time the reputation of the deceased is a matter of history not of legal rights (g) the centenary of the birth of Gustav Grundgens in 1999 marked something of a re-evaluation of his precise role and conduct.(h) as regards memory many now see him through the prism of Klaus Maria Brandauer which rather illustrates the point made by President Clinton – that historical memory today for the general population often derives from film
 When Ted Kennedy ran for nomination as a candidate for President in 1980 – it was relevant to discuss his family history or indeed in Canada journalists were free to discuss the family background of the recently elected Justin Trudeau
 Or indeed some limited changes to data protection legislation