What post-mortem privacy may teach us about privacy

This paper approaches the debate about the protection of digital legacies through a medical confidentiality lens given its outlier status in common law jurisdictions as a privacy duty that survives the death of the rightsholder. The discussion takes the relatively recent case law in England and Wales and by the European Court of Human Right on post-mortem medical confidentiality as a springboard for interrogating how these cases navigate the traditional objections to post-mortem privacy. Whilst the legal duty of medical confidentiality, drawing on the professional duty of the Hippocratic Oath, acts in the first place as a trust mechanism between doctor and patient based on a reciprocity of interests, its incidental effect of protecting not just the rightsholder but also duty bearers and the industry, signals more complex operational dynamics. The post-mortem continuation of that duty in turn brings these other relationships to the surface. Indeed, the post-mortemness amplifies that confidentialities – and information privacy - can rarely be located in an isolated, singular binary relationship between a duty bearer and a rightsholder but is entangled in the great messy sociality of life that involves multiple overlapping, interdependent relationships of relative trust. These may - upon the death of the primary rightsholder – make an appearance as competing claims on her legacies and incidentally and reflexively carry her post-mortem privacy