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Southampton Law School

Modern technologies, privacy law and the dead – a Leverhulme funded project by Dr Nwabueze at Southampton Law School

Published: 23 September 2020
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Relatively recent innovations in technology have rendered the Law outdated and behind the curve regarding the privacy and rights of the dead.

For the first time, a Southampton Law School researcher is delving into the issue of personality and privacy of the dead for the first time, arguing for a shift in privacy laws to recognise and protect the rights of a person after death.

Funded by the Leverhulme Trust, and using doctrinal, historical, analytical and empirical research methods, Dr Nwabueze, along with colleagues Professor Uta Kohl (Southampton Law School, Professor Lilian Edwards (Newcastle Law School) and Dr Edina Harbinja (Aston Law School),

will be making the first thorough examination of personality and privacy of the dead, from a variety of perspectives, with anticipated outcomes to be a recommendation to policy makers for legal reform in this area.

Abuse, defamation or violation of the privacy of the dead is not a new phenomenon; such tortious affronts against the dead have been an historical feature of our human society. English and Welsh law has turned a blind eye on offenders, not least because the dead, being dead, can no longer defend themselves and are considered by law to have lost their legal personality. However, the law’s position was developed in a technologically embryonic era when the only means of violating the dead’s privacy was through oral or newspaper disclosures – thus, inherently limiting the incidences of such legally unrecognisable wrongs against the dead. The law never anticipated the modern revolution in information, communication and biomedical technologies whose wide-ranging applications can adversely impact on the privacy of the dead.

The law’s lackadaisical attitude towards the privacy of the dead sits uneasily with recent innovations in information, communication and biomedical technologies which, in part, due to their capacity for widespread distribution and immortalisation of data relating to the dead, portends great danger for the privacy of the dead.

Modern technological exacerbation of the privacy of the dead has come through the pervasive tools of our technoculture. For instance, pictures of the dead, often victims of gruesome road accidents or suicide, have been known to have been freely and widely circulated causing additional unnecessary distress to bereaved relatives and friends. Significant psychiatric damage can also be inflicted on survivors by the unauthorised circulation or broadcast of the audio recordings of a deceased’s final and painful moments in life.

iPhone and other smartphones with an in-screen fingerprint sensor allow  anybody with access to a dead body to use their  hand to unlock their mobile phone and gain full access to private information; which could be  disclosed without authority.

Similarly, the existence and prevalence of modern genetic and biomedical technologies facilitate the genetic analysis of a deceased’s bodily parts, both for forensic and unauthorised purposes. Thus, blood samples from a deceased person might be extracted and tested without the consent of living relatives in order to determine whether the deceased, if he or she had died in a road traffic accident, was responsible for the accident by driving under the influence of alcohol. Unjustifiable publication of intimate or private information concerning a deceased person can be exacerbated by more extensive publication of that information on the Internet.

Dr Nwabueze’s work aims to produce recommendations for change in the Law, which he plans to publish in a range of journals and in a book, as well as tackling policy makers and lobbying for reform in this area.

 

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