What post-mortem privacy may teach us about privacy

Abstract

This paper approaches the debate about the protection of digital legacies through a medical confidentiality lens, capitalising on its outlier status in common law jurisdictions as a privacy-type duty that survives the death of the rightsholder. The discussion takes the case law in England and Wales and by the European Court of Human Rights on post-mortem medical confidentiality as a springboard for interrogating how these judgments navigate the traditional objections to post-mortem privacy. Whilst the legal duty of medical confidentiality, drawing on the professional duty of the Hippocratic Oath, acts in the first place as a trust mechanism between doctor and patient based on a reciprocity of interests, its incidental effect of protecting not just the rightsholder but also duty bearers and the industry, signals more complex operational dynamics. The post-mortem continuation of that duty in turn brings these other relationships to the surface. Indeed, the post-mortemness amplifies that confidentialities – and by extension information privacy - can rarely be located in an isolated, singular binary relationship between a duty bearer and a rightsholder but is entangled in the great messy sociality of life that involves multiple overlapping, interdependent relationships of relative trust. These may - upon the death of the primary rightsholder – make an appearance as concurrent or competing claims on her legacies and incidentally also carry her post-mortem privacy.