story-nabokov-last-work. Edwards.Galleyed-GOOD.docx (Do Not Delete) 11/17/13 10:24 PM 2013] PROTECTING POST-MORTEM PRIVACY 103 comments. When her parents, who are not social media users, are finally alerted to this, they are distressed at some of the posts on the profile relating to drinking and drugs. As nearest family, they ask Facebook to close the page down. 4 They also ask Facebook to give them access to Friends-locked posts they cannot see, so they can find out who might have encouraged their daughter's lifestyle. 5 Later, they find pictures of their daughter's unconscious body at the party have leaked on to the Internet and have "gone viral." These are all scenarios that intuitively concern what we shall call post-mortem privacy: rights of privacy for the dead. Post-mortem privacy is not a recognised term of art or institutional category in general succession law or even privacy literature. It may be termed the right of a person to preserve and control what becomes of his or her reputation, dignity, integrity, secrets or memory after death. While of established concern in disciplines such as psychology, counselling, anthropology and other humanities and social sciences, 6 this notion has, until recently, received relatively little attention, and then of only a scattered, conflicted and disparate kind, within law. 7 It is now however emerging, we will argue, as an appropriate topic of public and scholarly legal concern, 8 particularly due to the growth in creation, sharing and acquisition of digital assets which often have a peculiarly personal and intimate character, and also happen to be voluminous, shareable, hard to destroy and difficult to categorise under current legal norms of property 4

This paper builds on the general survey of post-mortem privacy set out in the author's earlier work. The concept of post-mortem privacy is further developed both at a theoretical level (underpinned by theories of autonomy) and a doctrinal level (considering concepts such as testamentary freedom, and the protection of personal data). Finally, the paper looks at some current developments of technology (tech solutions for the protection of post-mortem privacy) and law/policy (work done by the US Uniform Law Commission on the Uniform Fiduciary Access to Digital Assets Act-UFADAA). The argument is that both of these regulatory modalities provide examples and illustrations of how post-mortem privacy can be recognised practically, especially in the online environment. The paper is, therefore, setting the scene further in this under-explored area, also aiming to set the basis for the author's subsequent empirical research (attitudes towards postmortem privacy, quantitative and qualitative).

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This chapter will address the social and legal problems of transmission of digital assets on death. It questions whether existing well-known systems of laws and norms for transmission of property and assets on death are fi t for the purpose of bequeathing the new "digital assets". These assets are not simple to defi ne and combine very different categories of assets including, e.g., traditional intellectual property assets such as digitised songs, social network profi les, assets in virtual worlds or games, emails and passwords. In particular it is controversial if (some of) these assets are best viewed as "property" or "obligations", which has substantial effect on the legal consequences. In practice, at the moment, the area is mainly controlled by privately ordered rules of contract, i.e. the terms and conditions of different service providers, rather than by the general law of property and succession. In the realm of transmission of assets on death, this is unsatisfactory as it means the "rules" vary from site to site, are unclear to users, fail to take account of stakeholder interests and may change on whim.Other legal issues arising include where (if anywhere) digital assets are located, given that law is territorial not global; who owns and controls an asset (not always the same person); and in general, the competing interests of stakeholders including users/data subjects, their family and heirs, the platforms where digital assets are created or stored e.g. Facebook, Google, Second Life; and society.Finally, at least in common law systems , legal regulation of transmission of digital assets on death is muddied by the fact that while IP rights uncontroversially transmit to heirs (e.g. an author's literary estate) , there is little legal recognition of privacy/reputation rights after death (e.g. in English law, the dead have no reputation and thus cannot be libelled).

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