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”[1]
and in certain cases legal rights arising in lifetime might pass by devolution
to the executors or administrators – the obvious cases were property entitlements[2] and some form of
contractual rights[3]
(2) It is evident that a distinction has to be drawn between
(a) legal rights arising in the lifetime of X[4] which may pass by
devolution (b) legal rights that terminate or are extinguished by the death of
X[5] (c) legal rights that
arise[6] and are created by virtue
of death of X[7]
(3) Manifestly to enforce legal rights one must possess “legal
personality” and this concept does not prima facie extend to a deceased person[8] (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 [9]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[10] 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”
(a) privacy
(b)
reputation
(c)
dignity
(d)
integrity
(e)
secrets – confidential information
(f)
memory
(g)
personality rights
(h)
defamation
(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[11]”. 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[12].
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[13] but on the other relief
is accorded for the misuse of private information[14]. 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[15] (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[16]” 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[17]. 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[18]. 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[19] – 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[20] 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[21]; indeed the Copyright Act
1911[22], the Copyright Act 1956
and the Copyright and Designs and Patents Act 1988[23] 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.[24]
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[25] 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[26] 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[27] 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)[28] 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[29]” 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[30] (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[31].
29. Conclusions
(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[32] 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.
[1] Law
Reform (Miscellaneous Provisions) Act 1934 and any future incarnations
[2]
Rights in rem
[3]
Although of course certain “personal” contracts may on death be subject to the
common law doctrine of discharge by frustration.
[4] Of
course the common law has had to grapple with the legal concept of “death”
[5]
Actions in defamation
[6]
Which in the strict sense is “post mortem”
[7]
See the original Fatal Accidents Act 1846
[8]
Since one must be alive ; a view taken by the Court of Appeal in Harris v
Goddard (1983) 1 WLR 1203
[9]
See Copyright (Computer Software)Amendment Act 1985
[10]
As you noted
[11]
Which arguably terminates on death – in contrast to “personality rights”
[12]
See Younger Cttee (1972)
[13]
Wainwright v The Home Office (2004) 2 AC 406
[14]
Campbell v MGN Ltd (2004) AC 457
[15]
See legislation in California after 1985
[16]
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
[17]
As they often do – see the recent cases of Edward Heath and Leon Brittan
[18]
As the recent controversy concerning Ted Hughes has served to illustrate
[19]
Anatomy Act 1984
[20]
Fraser v Evans (1969) 1 QB 349
[21]
See Copyright and Designs and Patents Act 1988 sections 77-89 ; in particular
section 86
[22]
In dealing with the duration of copyright
[23]
In dealing with the duration of moral rights
[24]
Kelly v Cooper [1993]
[25]
See Inheritance Act 1938:Inheritance (Provision for Family and Dependants) Act
1975
[26]
There may be issues in the law of trusts to whether litigation is appropriate
and justified
[27]
See the common law rules on perpetuities and accumulations as well as the
limits to contracts deemed in restraint of trade
[28]
People have been known to claim an association with the deceased that existed
only in their imagination
[29] 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
[30]
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
[31]
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
[32]
Or indeed some limited changes to data protection legislation
