The conversation surrounding digital rights in the European Union typically focuses on the living: how our data is harvested, how algorithms influence our choices, and how we can reclaim our privacy from surveillance capitalism. However, a significant legal and ethical vacuum remains regarding what happens to our digital existence after we die. As an organisation dedicated to ethical tech, ALT-TEXT argues that the right to data autonomy must extend beyond the biological lifespan.
The GDPR Gap
It is a common misconception that the General Data Protection Regulation (GDPR) protects the data of the deceased. Recital 27 explicitly states that the regulation does not apply to the personal data of deceased persons. This leaves a fragmented landscape across the EU. While France has implemented the Loi pour une République numérique to allow individuals to set instructions for their digital remains, Belgium lacks a comprehensive federal framework.
For most citizens, digital inheritance is currently governed not by law, but by the Terms of Service (ToS) of private corporations. This creates a state of “digital feudalism” where platforms decide who accesses your emails, photos, and documents, often prioritising their own liability over the wishes of the deceased or the needs of their heirs.
Case Study: The Battle for a Daughter’s Legacy
The most significant test of these rights occurred in Germany, where the parents of a deceased 15-year-old fought a six-year legal battle against Facebook (BGH, III ZR 183/17). Following their daughter’s tragic death in 2012, the parents sought access to her account to understand the circumstances of her passing. Facebook refused, citing the privacy of third parties and their own internal “memorialisation” policies.
In 2018, the German Federal Court of Justice issued a landmark ruling in favour of the parents. The court established that a digital account is an inheritable asset, no different from a box of physical letters or a private diary. This case proves that without clear legislation, grieving families are forced into David–vs–Goliath legal battles against Big Tech just to access their own history.
The Rise of the “Griefbot”
The urgency of this issue has been accelerated by generative AI. We are seeing the emergence of “griefbots” – AI models trained on a person’s chat logs, voice notes, and social media presence to “resurrect” them as a conversational partner.
Without a legal Right to Post-Mortem Data Autonomy, your digital likeness could be commercialised or manipulated without your prior consent. This is not merely a privacy issue; it is a matter of human dignity. We believe that the right to “digital rest” should be a fundamental component of European digital rights, ensuring that an individual’s personality cannot be exploited by AI service providers after their death.
Practical Steps for Digital Autonomy
At ALT-TEXT, we advocate for a shift away from centralised, proprietary platforms that lock away your legacy. To ensure your digital inheritance aligns with ethical tech principles, consider the following:
- Digital Wills: Explicitly include digital assets – including private keys, domain names, and hosting credentials – in your legal will. Do not rely on platform-specific tools like Google’s Inactive Account Manager, as these are subject to change and corporate whim.
- Decentralised Storage: Use open-source, encrypted storage solutions. Providing an heir with a physical hardware key and a master password for a self-hosted Nextcloud instance is more reliable than petitioning a multinational corporation for access to a locked account.
- The Right to Erasure: Specify which data should be permanently deleted. Autonomy includes the right to be forgotten, a right that should be enforceable by executors to prevent the posthumous scraping of personal data for machine learning.
The ALT-TEXT Position
The current “grey zone” of digital inheritance serves only the interests of surveillance capitalism by allowing platforms to maintain control over vast troves of human data indefinitely. We call for a harmonised EU framework that recognises digital remains as part of a person’s estate, governed by the same principles of dignity and privacy that apply during life.
True data autonomy means being the master of your digital footprint, even when you are no longer there to walk it.