Article: Postmortem Privacy

Since its inception in the late nineteenth century, privacy rights have been understood to terminate with a person’s death. This traditional “no-privacy-right-for-the-dead” doctrine and understanding has been widely repeated for nearly 130 years. But as we demonstrate in this Article, the reality on the ground deviated from this common pronouncement even early on and this divergence has only grown over time. The breadth of the disconnect is so great today that sustained consideration of postmortem privacy is essential. This is especially so in light of increasing calls to protect rights to digital assets linked to deceased persons and improving technology, including generative artificial intelligence. The Article addresses the jurisprudential confusion and disagreement over whether, when, and how the law should extend privacy rights to the deceased. Our analysis suggests a different vision of postmortem privacy rights than that which currently exists. Postmortem publicity rights should not just be for the wealthy, and they shouldn’t just apply to the famous or to monetary claims. In fact, the current law that focuses on commercial value after death as the prime basis to extend rights, issue injunctions, and award damages has it backwards, or at least off kilter.

The Article begins by mapping what we call collectively “postmortem privacy,” revealing both the surprisingly wide extension of privacy after a person’s death, and also the haphazard, inconsistent, and at times incoherent state of this area of privacy law. We then consider and interrogate the array of interests that could justify such a right. We begin by considering what we designate as the law’s “jurisprudence of exclusion,” which withholds rights to entities that lack traits deemed essential for rights ascription. We then consider why, in spite of the initial impetus to deny rights to the dead, the law increasingly gravitates toward doing so. The best reasons to extend postmortem privacy are rooted, not in the ongoing interests of the dead, but in the interests of the living. In particular, the living have interests in the treatment of their future deceased selves—what we denominate the interests of the “future-decedents”— and with respect to their deceased relatives—we designate these interests as those of the “relational-living.” Society, composed of the living, also has a collective interest in treating the dead with respect. Any postmortem right of privacy, however, must be significantly bounded so as not to unduly jeopardize the interests of the living. The Article therefore, in its final part, explores important limits on such postmortem rights, including who should be able to assert such claims, their duration, and countervailing interests including the freedom of speech. Ultimately, we conclude that there are legitimate reasons to recognize postmortem privacy rights, or at least rights for the living tied to the dead, and to support social norms against mistreating the dead. However, it is essential to recognize our reasons for doing so, as they suggest a different vision of postmortem privacy rights than that which currently exists. This Article provides a path forward.