CYIL vol. 11 (2020)

ONDREJ HAMUĽÁK – HOVSEP KOCHARYAN – TANEL KERIKMÄE

CYIL 11 (2020)

3. Necessity of Post-Mortem Data Protection Regulation at EU level In our opinion, a new option of post-mortem data protection regulation is needed, and the EU lawmakers’ margin of appreciation’s policy should be changed. We believe that the EU law level of post-mortem data protection could be the best and only correct solution. It should not be forgotten that the issue of protecting the personal data of the deceased also includes the issues of protecting the rights and interests of their living relatives, in particular their dignity and privacy, which are recognized as fundamental rights and protected at the EU law level. In this context the protection of this issue at the level of EU law is implicit. B. Zhao believes that the deceased person’s heirs have two post-mortem interests, namely reputation and privacy 32 and both of them are unambiguously recognized by EU law. Of course, there are some scholars, who consider the violation of the deceased’s privacy as “no- effect injury, taking into account the fact of the deceased’s inability to protect their personal data or to realize their digital identity 33 . However, we disagree with such an approach, because even if the deceased is not able to protect their personal data, it does not mean that there is a “no-effect injury” at all. Living relatives should not be forgotten about: in any case such a violation causes direct harm to their reputation and interests. The privacy and reputation of the deceased becomes an integral part of the reputation of their relatives, regardless of their willingness to be protected. As Smolensky rightly notes: “Assume that a person dies and their neighbour spreads defamatory remarks about them. These remarks hurt the decedent’s reputation, regardless of whether they are alive and can become emotionally upset by the statements. The fact that they do not know about the harm does not mean that a harm to the decedent’s interest, namely their reputation, has not occurred ” . 34 In order to answer the question “What approach would be the most effective and reasonable for the EU?”, we consider it appropriate to analyse along with EU Member States legislation also the case-law practice of both EU Member States and the ECtHR. It will help us to clearly understand, how the post-mortem data protection is realized in the law-enforcement practice of EU Member States, what legal problems exist in this area of law, as well as what level of influence the ECHR and implicitly the EU Charter on Fundamental Rights has on this issue. 3.1 The Opinion of the European Supranational Courts (the ECtHR and the CJEU) on the Protection of Post-Mortem Data? Before proceeding to the consideration of the European supranational courts’ case law, it should be noted that the ECHR, unlike the EU Charter, does not contain a separate right to the protection of personal data, so the issues related to the violation of personal data are usually considered in the context of Article 8(1) of the ECHR, 35 providing that “everyone has 32 ZHAO, B.: Posthumous Defamation and Posthumous Privacy Cases in the Digital Age. Savannah Law Review , 2016, vol. 3, no. 1, pp. 15-35. Available at: https://www.savannahlawschool.org/wp-content/uploads/ volume3number1-article02.pdf. 33 See WINTER, S.: Against posthumous rights. Journal of Applied Philosophy , 2010, vol. 27, no. 2, pp. 186-199; see also FLORIDI, L.: The informational nature of personal identity. Minds and Machines , 2011, vol. 21, no. 4, pp. 549-566, https://doi.org/10.1007/s11023-011-9259-6. 34 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. 35 This is not the only example of broadening the scope of Article 8(1) of the ECHR. See, for instance, PATAKYOVÁ, M.: Right to Privacy and European Competition Law. Forum Iuris Europaeum , 2016, vol. 4, no. 2, pp. 25-35. Available at: http://fie.iuridica.truni.sk/archiv/.

232