Sergio Pareja

Professors Allen and Rothman have written an excellent piece that addresses an issue of growing importance. While questions about privacy have always existed, technological changes that are occurring at a lightning-fast pace are creating demand for a consistent and clear legal framework. These technological changes include artificial intelligence, social media and email accounts, as well as the ubiquitousness of cameras and recording devices. This raises new questions regarding rights to a person’s name, image, voice, life history, beliefs, and identity after death.

Postmortem privacy refers to privacy protections that continue after death. The traditional view, which has been repeated for over a century, is that privacy rights end with death. The reality is much more nuanced, and courts sometimes do in fact protect some privacy rights after death. The growing importance of digital legacies and technologies makes reevaluating postmortem privacy critically important. Professor Allen and Professor Rothman’s article aims to build a theoretical and legal foundation for recognizing and shaping privacy rights after death.

Part I of the article maps the history and legal framework governing postmortem privacy rights. In this part, the authors note that the law already grants privacy protections in many areas, though inconsistently, and these protections vary widely across jurisdictions and legal contexts. Said differently, the current legal landscape is patchy, often incoherent, and in need of systematization.

In Part II, the authors discuss the “jurisprudence of exclusion,” which refers to the legal reasoning used to deny rights to groups or entities that fall outside of established paradigms—such as denying privacy rights to the dead, voting rights to children or non-citizens, or legal personhood to animals or trees. While living adult humans are the standard rights-holders, this doctrine explains why certain others—like corporations or deceased individuals—are excluded from some rights. Under this doctrine, a deceased person is excluded from having privacy rights. Despite this, legal and social pressures are increasingly pulling toward granting postmortem privacy rights, reflecting a broader shift in thinking on this topic.

In Part III, the authors explore the justifications for postmortem privacy protection and note that, while the dead may not have direct interests in privacy, certain living people do. Specifically, (1) “future decedents” care about how their identity and legacy will be treated after death, (2) survivors, such as family and friends, have emotional and reputational interests in protecting deceased loved ones, and (3) more generally, society at large benefits from the respectful treatment of the dead. These interests justify extending certain privacy rights beyond death.

In Part IV, the authors argue that postmortem privacy rights must be bounded by and balanced against other competing interests. Concerns that they raise include determining who qualifies for privacy protection, determining who can enforce these postmortem privacy rights (i.e., who has standing), determining how long these rights should last, and determining how the law should define limits to avoid overreach or injustice.

Ultimately, the authors conclude that we need to rethink the current legal approach, which seems to prioritize commercial value, such as the privacy rights of celebrities, over broader privacy concerns. The current approach often benefits corporate interests, rather than interests of the deceased or their loved ones. Simply stated, the authors argue that postmortem privacy should be universal, not just for the famous. Instead, the law should better empower survivors and respect future decedents. To this end, the article proposes a more coherent, equitable, and meaningful framework for postmortem privacy.

The authors propose an approach to postmortem privacy that balances the interests of the dead, the living, and society. While the law of wills traditionally endeavors to respect the wishes of the deceased, postmortem privacy raises unique challenges. The authors argue that economic motives, such as profiting from a dead relative’s image, should not override a decedent’s clearly expressed wishes. In some contexts, however, survivors’ interests, such as grief or personal privacy, may take priority, and those wishes should supersede the decedent’s wishes. Generally, however, the decedent’s preferences, especially with respect to data and commercialization, should be respected.

Determining who has the right to enforce postmortem privacy is crucial. While the deceased cannot advocate for themselves, representatives, such as family members, executors, or designated agents, can step in. However, current law lacks consistency in defining who has standing to represent the decedent when it comes to privacy rights. The article suggests that the law should allow those closely tied to the decedent’s interests, such as people named in wills or designated while alive, to bring claims, but it should prohibit claims by those seeking profit or who have no meaningful connection to the deceased.

The authors also believe that postmortem privacy rights should not last indefinitely. They generally support the idea of “durational pragmatism,” which customizes duration based on the specific interests being protected, such as grief, dignity, or public discourse, and they recommend setting reasonable time limits to balance respect for the dead with societal needs like free speech, historical research, and cultural memory. Unlike property rights, privacy rights often relate to personal dignity, not wealth, so perpetual control is inappropriate. There must also be exceptions—such as for public grieving, commemoration, or when disclosure serves a compelling public interest. An exception may exist, for example, when the release of a decedent’s information, such as genetic data, affects the privacy of the living. To avoid abuse, however, economic motives for asserting rights should be constrained, possibly by limiting claims to non-monetary interests, or restricting who can benefit.

Ultimately, the authors conclude that postmortem privacy should not be absolute. While the dead can have lingering privacy interests, these must be limited in duration, scope, and transferability, and always considered alongside societal interests in access, truth, and free expression. The law needs reform to better reflect the balance between respect for the dead, the emotional needs of survivors, and the public’s right to know.