The Networking Dead: An Attempt to Define Statutory Third-Party Publicity Rights in Digital Estates

Abstract

With the advent of social networking, one’s online identity and their personal information become embedded within the online personas of others. One problem of digital estates is this: Consider the personal information of third-parties such as: i) families of the deceased concerned with privacy, or ii) those consociates who have “friended” the deceased online or who, perhaps, are the subject-matter of the deceased’s copyrighted content, e.g., such as photographs. How is that shared information of those parties protected, even after the deceased has passed? In Europe, there are “fair information practice” standards codified by law. Regardless of whether the information is held by the government or private entities, European citizens have legal rights to prevent their personal information from being misused. The United States has no such comprehensive protection for its citizens.Nor will contract law provide U.S. citizens comparable substantive rights under a third-party beneficiary theory. The law of torts will instead be explored to clarify the public policy rationales that have been successful in underpinning privacy and limitations over publication of personal information. But, also and especially, the law of property will be investigated. This is in line with leading scholars who have posited that property interests could be a viable way to internalize the costs of information to those who would primarily benefit from that information. In Part I, we define the “third-parties” whose interests are at issue by tying the concept to those whose personally identifiable information has been captured. In Part II, we analyze the existing obstacles and loopholes that serve to vitiate end-users rights to their own data. We also propose that at least one way to avoid those pitfalls is to formalize a property right in a person’s data from the onset. In Part III, we analyze certain exemplars which can be used to fashion a better regulatory scheme, based on such a property right. Part IV concludes, while an appendix contains a sample code wherein a jurisdiction might attempt to implement our suggested solution.