CYIL vol. 11 (2020)

ONDREJ HAMUĽÁK – HOVSEP KOCHARYAN – TANEL KERIKMÄE CYIL 11 (2020) to find a “compromise” solution for all the EU Member States, but nevertheless taking into account the risks of “data business” and the importance of protecting a living relative’s rights and interests, a new effective uniform model at the EU law level is much needed. 4. Conclusions The analysis of the case law of the ECtHR, the GDPR’s provisions as well as the EU Member States legislation (including case law) shows that they do not provide any unified principles or criteria, on the basis of which it would be possible to create an effective model of post-mortem data protection at the EU law level. Nowadays, there is a situation when neither the EU primary (the EU Charter of the Fundamental Rights) or secondary law (in particular, the GDPR), nor the European Convention on Human Rights, nor the case law of both European Supranational Courts provide for post-mortem data protection in the EU. As a result, in many cases the issue of post-mortem data protection is left to the unlimited discretion of the Internet service providers and social media companies themselves, who provide a post-mortem data protection policy convenient for them, naturally taking into account their business needs, rather than the rights and moral interests of the living relatives of the deceased. In this regard, the EU lawmaker should try to create such a unified hybrid (“consensual”) mechanism of post-mortem data protection that will effectively include the best principles, values, practice and achievements of the EU Member States in this area of law. 64 Although we find it the best solution to this issue, we understand that it is a really difficult task, therefore the EU lawmaker firstly should think about the harmonization of EU Member States legislation, adopting a new directive on post-mortem data protection, then when the EU Member States will be more or less harmonized, to realize their unification policy as it was in the case of the DPD and the GDPR.

64 For the challenges in legal regulation of internet and cyber issues see current debate in KASPER, A.; KRASZNAY, C.: Towards Pollution-Control in Cyberspace: Problem Structure and Institutional Design in International Cybersecurity. International and Comparative Law Review , 2019, vol. 19, no. 2, pp. 76-96, https:// doi.org/10.2478/iclr-2019-0015.

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