CYIL vol. 11 (2020)

ONDREJ HAMUĽÁK – HOVSEP KOCHARYAN – TANEL KERIKMÄE CYIL 11 (2020) relevant interests (freedom of expression, archives and historical records, etc.)”. 10 There are even scholars, such as V. Mayer-Schönberger, who supports the policy of removing the deceased Internet users’ personal data after their death. 11 We don’t consider the mentioned policy as a good option to the issue though, since according to this approach the personal data carrying information about the contribution of a person to history, science or art should also be subjected to removal. The digital death should have not absolute but limited effect. In other words, even if a data subject wants their personal data to be fully removed after their death, not all data should be deleted, only the ones which have a non-significant influence to social interests. We cannot be categorical about this issue, but we must strive to find an effective balance between protecting the personal data of the deceased and the public interest. Moreover, we should not forget that the EU Charter of Fundamental Rights along with the right to data protection also considers freedom of information as a human fundamental right (art. 11). In the case of deleting all data after a person’s death, the freedom of information will be endangered. Other scholars adhere to the approach that there is no need for posthumous data protection at the EU law level and that the EU Member States should have their own margin of appreciation in this issue. For example, according to E. Okoro: “At European Union level, a call for posthumous personal data will not be welcomed and answered by all Member States as each state has its own unique history and traditional beliefs upon which its legal system is built. Where some Member States, Germany and France, for instance, will welcome a uniform regulation of posthumous data protection, others, for e.g., the United Kingdom, will consider it an affront to their legal system which explicitly disassociates the dead from having autonomous rights. Thus, a posthumous data protection framework under EU law is not necessarily needed.” 12 However, it seems to us that such a position is not without its drawbacks. Even if the United Kingdom has its own approach to this issue, currently it doesn’t have any significance in EU law because of Brexit. Besides, imagine a situation when after death the personal data of the deceased is being processed and in online-news or social networks (such as Facebook, Instagram or Twitter) is published such information that is unreliable, inaccurate, or accurate but defamatory or offensive in its nature, causing moral harm to the relatives of the deceased. Moreover, imagine that the publication and disclosure of such information on the Internet occurred in an EUMember State whose legislation does not contain special rules for the processing and protecting of personal data post-mortem. It turns out that the publication and disclosure of such personal data on the Internet causes moral harm to the relatives of the deceased, while neither the GDPR nor the legislation of the EU Member State provide relatives with an appropriate and effective mechanism for protecting not only personal data of the deceased, but also the relatives’ rights. 13 As a result, this issue is left to the unlimited discretion of the Internet service providers and social media companies 10 HARBINJA, E.: Does the EU Data Protection Regime Protect Post-Mortem Privacy and What Could Be The Potential Alternatives? SCRIPTed , 2013, vol. 10, no. 1, pp. 19-38. Available at: http://script-ed.org/?p=843. 11 MAYER-SCHÖNBERGER, V.: Delete: The virtue of forgetting in the digital age. Princeton: Princeton University Press, 2009. 12 OKORO, E. L.: Death and Personal Data in the Age of Social Media . LL.M. Thesis 2018, Tilburg University. Available at: http://arno.uvt.nl/show.cgi?fid=147487. 13 Although there are cases of removing links to information about the deceased from a search engine (for example, links to articles of the Telegraph news publication from google.co.uk), the possibility of judicial protection of such claims is in question.

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