Posthumous Data Rights, Global Governance, and the Role of the UN
By Nishchay Rao
In an increasingly digitized world, the question of managing digital legacies after death has become a matter of profound legal, ethical, and emotional significance. As digital lives expand, posthumous data management grows more complex, demanding urgent attention. However, the issue of posthumous data rights remains largely unaddressed globally, which raises significant concerns as the “Right to Privacy” is a fundamental right under Article 12 of Universal Declaration of Human Rights. With no unified approach to the posthumous management of digital data, families and stakeholders face an array of challenges when trying to navigate the intricacies of digital legacies. These challenges include:
Legal uncertainty due to inconsistent national laws and international data flow.
Ethical dilemmas over balancing the privacy rights of the deceased with the emotional needs of their families.
Emotional distress for families who are left helpless in the absence of clear directives.
There is an urgent need for a global framework guaranteeing posthumous data rights, led by international organizations like United Nations Educational, Scientific, and Cultural Organization (UNESCO) and the International Telecommunication Union (ITU). Such a framework must prioritize individual agency and cross-jurisdictional consistency in order to address the legal, ethical, and emotional challenges of digital legacy management.
The necessity of an international framework for posthumous data management arises from several critical considerations. First, the inherently global nature of digital data demands a cohesive approach, as digital assets frequently extend beyond national borders, presenting complex legal and ethical challenges that cannot be effectively addressed by domestic laws alone. Establishing uniformity across jurisdictions is essential to ensuring that individuals' rights and privacy are upheld consistently worldwide. Harmonization also fosters consistency across borders, enabling standardized management of digital legacies regardless of an individual's domicile or the physical location of their data. A unified framework will simplify compliance for data fiduciaries, reducing the legal and administrative complexities associated with navigating disparate national regulations. Furthermore, international guidelines serve to bridge gaps in national legislation, offering a comprehensive regulatory structure where domestic laws may be insufficient or outdated.
Most national legislations offer little guidance on posthumous data management, placing responsibility on data fiduciaries who hold the personal data. While some data fiduciaries, such as Google LLC, provide user control over their data management, these options remain obscure and buried in terms of service agreements. Their voluntary nature and insufficient publicizing renders them largely ineffective in addressing user needs.
Several high-profile cases illustrate the issue’s depth. A grieving widow in the United States fought a prolonged legal battle to gain access to her deceased husband's digital accounts, confronting procedural obstacles that exposed the lack of clear policies for posthumous data management. What should have been a simple process became a prolonged ordeal due to the absence of clear and enforceable policies. Another notable case in the United States involved a father who struggled to access his deceased son’s email account, a U.S. Marine who had died serving in Iraq. The company’s refusal, citing its terms and conditions, resulted in a partial court order permitting only limited access to the content. Similarly, in Germany, a mother sought access to her deceased daughter’s social media account. The court ultimately ruled in her favor, recognizing the account as part of the daughter’s digital legacy.
These situations raise a troubling question: what if the deceased had never wanted his family to access his account? While families may seek access to digital accounts for sentimental or practical reasons, the deceased's privacy must also be respected. In cases where the deceased did not explicitly provide consent, should default policies favor privacy or access? Jurisdictions like Germany have ruled that digital accounts should be inheritable, whereas U.S. courts have upheld strict privacy protections as seen above, making an international policy the only answer.
These cases are not isolated, they represent a widespread issue that has become a growing concern for individuals worldwide. According to the survey I ran (consisting of 50 participants aged between 18-25 from a premier institute in India), 86 percent of respondents expressed deep concern about what happens to their digital data after death. Moreover, 96 percent of participants believed that users should have control over the fate of their digital data after death. The emotional distress experienced by families in these cases resonates deeply with the widespread concern reflected in my survey responses, revealing a collective sense of unawareness, helplessness, and insecurity about the future of personal digital data.
To address these challenges, we can draw inspiration from leading data fiduciaries. However, unlike their policies, posthumous data management should be mandatory, not optional. This obligation must be clearly stated in terms and conditions during the initial user sign up. Furthermore, this requirement should apply retroactively by seeking consent for ongoing management of previously-produced data. Data fiduciaries must obtain explicit user directives regarding data management after death, offering comprehensive options to respect user preferences. The choice of options must include:
Digital Nominee Appointment: This nominee will be designated upon account creation. They would be authorized to manage the deceased person’s digital data according to their expressed wishes, ensuring that the management of digital legacies is conducted with dignity and respect.
Memorialization: The user can choose to memorialize his account after their death and not give its access to anyone. There should be Global Memorialization standards for preserving the user’s data while preventing unauthorized access or modification. Features like a ‘Late’ marker on their name, restricted logins and editing, and maintained privacy settings would ensure a respectful balance between honoring legacies and protecting digital security.
Data Deletion: This option would allow the user to have their personal data permanently erased from the data fiduciary’s servers once their proof of death is presented to the data fiduciary. However, this right should be subject to exceptions provided by law.
The United Nations, through UNESCO and ITU has previously served as a guiding light on related issues, such as the UN’s focus on digital inclusion, its Special Rapporteur on the right to privacy, and UNESCO's recommendations on the ethics of AI. Building on this legacy, these agencies need to extend their efforts to address the complexities of digital legacies. By harmonizing national laws with these international standards, the global digital community can ensure that digital legacies are handled in a manner that respects individual privacy while addressing the needs of families and society.
While an international policy for posthumous data management offers important benefits, the significant cultural and legal diversity across nations presents challenges to a one-size-fits-all approach. Each country’s unique perspectives on privacy and data use are deeply rooted in societal norms, making uniform global standards difficult to achieve. Additionally, differences in technological and regulatory infrastructure mean that some nations may struggle to enforce international requirements without tailored support. Rather than forgoing the need for a comprehensive international approach, these challenges underscore the importance of building flexibility into global policies. By allowing for localized implementation that respects national values and priorities, international standards can better address ethical dilemmas and support effective enforcement where it is most needed.
Posthumous data management is a critical legal, ethical, and emotional challenge that demands immediate global attention. Highlighted cases and survey data reveal widespread uncertainty, reinforcing the urgent need for a standardized international framework. Led by UNESCO and ITU, a unified policy structure is essential to ensure digital legacies are managed with dignity, security, and legal clarity. Policymakers must enact binding digital inheritance laws, technology companies must implement transparent posthumous data policies, and individuals must proactively set directives for their digital assets. The need for immediate action is evident, as without decisive intervention, digital identities will be subjected to persistent legal ambiguity and ethical dilemmas, inviting unwarranted judicial scrutiny.
Nishchay Rao is pursuing a degree in Law and Business from the Indian Institute ofManagement, Rohtak. He is interested in creating small but meaningful impact, whether in research, policy-making or student-led initiatives. His professional experience includes contributing to policy-driven legal research with a non-governmental organization working on reforming India’s digital privacy legislation, and working at a reputed law firm engaged in arbitration proceedings arising out of infrastructure and commercial contract disputes. In addition, his early involvement at a local trial court allowed him to observe first-hand the operational challenges and human dimensions of the criminal justice system. He is also the founding member of The First Draft Co., a not-for-profit initiative aimed at helping early-stage law students begin their research and publishing journeys.
Skeleton soldiers, a horse with the head of a man, and other monsters advance in the growing darkness (Kawanabe Kyōsai).
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