The politics of postmortem privacy

Abstract

While the existence of postmortem privacy is increasingly acknowledged (such as the protection of the presence of deceased within digital spaces), far less attention has been paid to its internal instability: its scope (the extent of its application), justificatory foundations (why do we protect the deceased in the first place), and uneven articulation across jurisdictions (for example, some jurisdictions may tolerate or endorse practices that may be contestable in a different jurisdiction). This piece unearths the internal diversity of the concept by illuminating specific points of tension and conflict that the notion of postmortem privacy evokes. These points of tension are collectively refer to as the politics of postmortem privacy. To do so, this paper organises existing contributions of legal scholarship, placing them in dialogue with broader cultural, social, historical and political observations to illustrate the politics of postmortem privacy through three different loci of analysis: the transatlantic divide between European and American approaches, intra-European tensions within data protection governance, and postcolonial and post-authoritarian contexts in the Global South. While existing literature has glimpsed toward the former two, this piece contends that the latter deserves greater attention and inclusion in the debates around privacy and the dead. The piece explains, in continuity with existing scholarship, how postmortem privacy is assembled differently as a productive register through which societies negotiate memory and dignity, which play a great role in the governance of data of the dead and information flows.