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Recently, the Madras High Court (“MadHC”) stated that assertion of existence of posthumous right to privacy is ‘tenuous and amorphous’.1 The applicant sought to exercise the right to privacy on behalf of her late aunt. In this matter, while disposing off the application filed by the niece of the former chief minister of Tamil Nadu, late Dr. J. Jayalalithaa, the Court refused to grant injunction on the release of the film titled ‘Thalaivi’ and the web series ‘Queen’.

Although, the Court stated that the question of privacy after death will be decided when the matter is finally disposed, however, this order raises questions pertaining to the contours of privacy rights as guaranteed by the law. Reference must be made to the concurring opinion of Justice Sapre in the landmark Puttaswamy Judgment (I), in which right to privacy was recognised as part of Article 21. Justice Sapre stated -

“... right to privacy is essentially a natural right, which inheres to every human being by birth. Such right remains with the huma being till he/she breathes last...In other words, it is born with human being and extinguish with human being.” 2

This judicial opinion renders anyone to incline to the conclusion that one is not protected by the right to privacy after one’s death. In the digital era, one’s identity is immensely intertwined with their online activities. Protection of one’s identity or what are called as ‘digital assets’ are not protected under any framework of law. Digital assets include everything that pertains to one’s online presence including social media profiles, pictures, email accounts etc.3 There is a growing literature that seeks to put in place a framework that handles digital assets of a deceased, taking privacy considerations into account.
  1. Dignity not just in death but also after death
    Edwards and Harbinja define post-mortem privacy as ‘the right of a person to preserve and control what becomes of his or her reputation, dignity, integrity, secrets or memory after death’.4 Human dignity is crucial for upholding privacy.Floridi argues that human dignity forms the foundation of privacy, that the core objective of privacy is preservation of human dignity.5

    Regarding recognising dignity of the dead, the idea is not novel in the Indian legal jurisprudence. In S. Sethu Raja v. The Chief Secrectary, MadHC held that human dignity which a living person is expected to be treated with, must be extended to the dead.6 Similarly in Parmanand Katara (Pt.) v. Union of India, the Supreme Court noted that -

    “...right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.”7

    Additionally, human beings continue to constantly contribute to their post-mortem selves.8 This self that comes to existence after death continues to occupy mind of the living prior to their death as well as of the survivors. What can happen in future influences how one perceives the present. While the protection of the self of the living is provided for, however the influence of post-mortem self on the living self lends support to the expansion of privacy rights when looking it through the lens of dignity.9
     
  2. Informational self-determination
    Another facet of dignity is informational self-determination which is also rooted in autonomy of an agent. Westin considered privacy as a claim to determine ‘when, how, and to what extent information’ is communicated to others.10 The Puttaswamy Judgment(I) also recognised the informational privacy under which an individual must have control over dissemination of information that is personal to him, “It is but essential that the individual knows as to what the data is being used for with the ability to correct and amend it.”11 Whether this can be provided to us port-mortem depends on the conceptualisation of ‘identity’ and what is deemed to be guarded when we talk about informational self-determination.

    A person continues to occupy discursive space amongst the public after death. The nature of information that survives is similar to that of a living person. This information has bearing on one’s identity and how one is perceived in the public. Morally, there is no good reason to reject extension of this ante-mortem control to the post-mortem in order to prevent harm to one’s identity. The informational privacy of a living person must also prevent a deceased person from ‘unknown, undesired or unintentional changes to one’s identity’.12

    As the literature advocating for post-mortem privacy grows, we are nudged towards rethinking of the concepts inherent to human beings especially in light of the emergence of ‘digital remains’ and ‘digital legacy’. This reconceptualisation is of dignity, privacy, autonomy, digital immortality, digital ethics etc. Justice Sapre had himself noted that the contours of this right “has to go through a process of case-to-case development”.13 Therefore the hope is that these new notions are able to get adequate scrutiny and rendered adequate thought that they deserve.

    1. Deepa Jayakumar v. A.L.Vijay and Ors. 2020(1)CTC670.
    2. Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. WRIT PETITION (CIVIL) NO. 494 OF 2012.
    3. Phillipa Warr, Digital assets post mortem, Internet Policy Review (Oct. 14, 2014) https://policyreview.info/articles/news/digital-assets-post-mortem/328#:~:text=Post%2Dmortem%20privacy&text=In%20other%20words%20it%20means,makes%20up%20your%20online%20presence.
    4. Lilian Edwards & Edina Harbinja, Protecting Post-Mortem Privacy: Reconsidering The Privacy Interests of The Deceased In A Digital World, CORE, https://core.ac.uk/download/pdf/29852098.pdf
    5. Luciano Floridi, On Human Dignity as a Foundation for the Right to Privacy, Springer Link (2016) https://link.springer.com/article/10.1007/s13347-016-0220-8
    6. S. Sethu Raja vs The Chief Secretary [WP (MD) Nol.3888 of 2007].
    7. Parmanand Katara (Pt.) v. Union of India (1995) 3 SCC 248.
    8. Catherine Exley, Testaments and Memories: Negotiating after-death identities, 4 (3) Mortality 250, 251 (1999).
    9. Geoffrey Scarre, Privacy and the Dead, (19) 1 Philosophy in the Contemporary World 1,2 (2019).
    10. Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967), p. 7.
    11. supra n. 2.
    12. J.C. Buitelaar, Post-mortem privacy and informational self-determination, ETHICS INF TECHNOL 19 129-142 (2017), https://link.springer.com/article/10.1007/s10676-017-9421-9
    13. supra n. 2.