CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTEMPORARY ISSUES OF POST-MORTEM PERSONAL DATA … may lose its social significance in the process of changing life circumstances, or contain incomplete, inaccurate, unreliable or reliable, but defamatory or offensive information, and therefore cause moral harm to the relatives of such a deceased person. D. Sperling correctly notes that: “(…) even though a person may not survive their death, some of their interests do”. 4 A similar approach is followed by K. Smolensky, who tends to believe that: “While it is true that only a subset of interests may survive death, and even a smaller subset receive legal protection, death does not necessarily cut off all interests, and consequently, it does not end all legal rights. Recognition of posthumous legal rights gives the dead a significant moral standing within our legal system, as would be expected if lawmakers are driven by the desire to treat the dead with dignity.” 5 Moreover, the importance of the effective protection of post- mortem personal data concerns not only the pure protection of privacy and reputation, but also the protection of the economic interests of the deceased. And not by chance G. Malgieri argues, that “personal data is no longer a mere expression of personality but a strong economic element in the relationships between companies and consumers”. 6 In his turn, A. Mundt on the example of Facebook’s policy shows that: “Today data are a decisive factor in competition. In the case of Facebook, they are the essential factor for establishing the company’s dominant position. On the one hand there is a service provided to users free of charge. On the other hand, the attractiveness and value of the advertising spaces increase with the amount and detail of user data.” 7 The GDPR is even considered to be one of the regulatory mechanisms of social networks such as Facebook, though, as established by J. Mazúr and M. T. Patakyová: “GDPR is of no use if a consent of data subjects is given, or if data processed by SMPs are no longer personal data”. 8 However, in the legal literature there is not any developed unified approach, how to solve the legal issues of post-mortem personal data protection in the framework of the EU. As a possible solution to the theoretical and practical issues of post-mortem data protection G. Malgieri sees a combination of posthumous privacy and quasi-property of heirs on the “digital body” of a deceased person. 9 E. Harbinja, in turn, sees “… as a viable solution (…) including the deceased’s data in the scope of the definition of personal data in the proposal, and awarding a time-limited protection, with appropriate safeguards in relation to the other 4 SPERLING, D.: Posthumous Interests. Cambridge: Cambridge University Press, 2008, 304 p. 5 SMOLENSKY, K. R.: Rights of the dead. Hofstra Law Review , 2009, vol. 37, no. 3, pp. 763-803. Available at: https://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v37n03_cc4_smolensky_final.pdf. 6 MALGIERI, G.: Property and (Intellectual) Ownership of Consumers’ Information: A New Taxonomy for Personal Data. Privacy in Germany, 2016, no., pp. 133 at al.. Available at SSRN: https://ssrn.com/ abstract=2916058. 7 See Privacy laws & business: Facebook’s conduct “exploitative abuse” says Germany’s competition regulator. Available at: https://www.privacylaws.com/news/facebook-s-conduct-exploitative-abuse-says-germany-s-competition-regulator/. 8 MAZÚR, J., PATAKYOVÁ, M.T.: Regulatory Approaches to Facebook and Other Social Media Platforms: Towards Platforms Design Accountability. Masaryk University Journal of Law andTechnology , 2019, vol. 13, no. 2, pp. 219-241. Available at: https://journals.muni.cz/mujlt/article/view/11822. For further elaboration on why the data protection mechanism is an imperfect regulatory mechanism, see MAZÚR, J., PATAKYOVÁ, M.T.: Facebook – Global Issue Without (Existing) Solution? In Kliestik, T. (ed.) GLOBALIZATION AND ITS SOCIO-ECONOMIC CONSEQUENCES, 18th International Scientific Conference Proceedings, Part V. Digital Single Market , Zilina: University of Zilina, 2018. Available at: https://globalization.uniza.sk/minule-zborniky/. 9 See MALGIERI, G.: R.I.P.: Rest in Privacy or Rest in (Quasi-)Property? Personal Data Protection of Deceased Data Subjects between Theoretical Scenarios and National Solutions. In Leenes, R. at al. (eds). Data Protection and Privacy: The Internet of Bodies , Brussels: Hart, 2018. Available at SSRN: https://ssrn.com/abstract=3185249.

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