Privacy law and the dead – a reappraisal (part II)

In an earlier article, we argued that post-mortem privacy is not sufficiently protected (if at all) in the laws of England and Wales. Therefore, we suggested that post-mortem privacy protection or right could be developed along the lines of medical confidentiality and post-mortem copyright which endures beyond death. We argued that this evolutional trajectory could be conceptually underpinned by certain theories of post-mortem interests and harm, as well as European Court of Human Rights (ECtHR’s) jurisprudence on positive obligations. In this article, we deepen and extend the theoretical analysis and support for a post-mortem privacy interest or right. Specifically, we draw from Boonin’s posthumous harm thesis (PHT) and posthumous wrong thesis (PWT) to develop a framework and rationale for justifying the recognition and enforcement of a privacy right post-mortem. Essentially, our theoretical framework suggests that, just as a living person can be harmed by an act that does not have any effect on their conscious experience, such as the frustration of their desires, the dead can also suffer unfelt harm. We test and illustrate the analytical and explanatory power of this theoretical framework with a USA post-mortem privacy case and five relevant practical examples that apply throughout the analysis. Furthermore, we examine some important cases in England and Wales to show how the use of our framework could lead to the recognition and justification of a privacy right post-mortem. We repeat this analytical strategy for some relevant cases drawn from the ECtHR based on the European Convention on Human Rights (ECHR/Convention Rights). All of the above leads us to argue, and suggest, that a plausible case can be made for the existence and recognition of a post-mortem privacy right for the deceased, and a relational privacy right post-mortem for survivors. <br/>