The Post Mortem Right to be Forgotten

Derecho al olvido post mortem



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In the digital age, our lives are intrinsically intertwined with a digital footprint that endures beyond our physical existence. From social media profiles to online medical records, our web activities leave a permanent mark that can persist even after our death. In this context, a fundamental ethical and legal question arises: do we have the right to have our digital footprint erased upon our death? This is the core of the right to post-mortem oblivion.

The debate on the right to be forgotten post mortem is situated at the intersection of privacy, memory and digital autonomy. On the one hand, there is the right to preserve the privacy and dignity of the deceased and their families. On the other hand, there is the public interest in preserving historical memory and access to information.

Legal and Technological Context of the Right to be Forgotten Post Mortem

To understand the importance of this debate, it is crucial to analyze the legal and technological context in which it takes place. In many countries, data protection laws are evolving to address online privacy concerns, but few legal frameworks specifically address the Right to be Forgotten post mortem. In addition, emerging technologies such as artificial intelligence and machine learning pose additional challenges in storing and processing large amounts of personal data, even after an individual’s death.

Legal, Ethical and Technological Considerations

In this sense, the right to post-mortem oblivion involves a series of legal, ethical and technological considerations. From drafting digital wills to managing social media profiles, there are a variety of tools and practices that can help ensure that the wishes of the deceased are respected in terms of their digital footprint.

In some places, privacy and data protection laws may allow heirs to access or make decisions about certain digital content. However, in other cases, the terms of service of digital platforms may specify what happens to accounts and digital content after the death of the account holder. Some platforms offer options to designate a “legacy contact” or set up instructions on what to do with the account in the event of death.

Privacy and Reputational Impact

One of the main concerns surrounding the right to be forgotten post mortem is the impact on the privacy and reputation of the deceased and their loved ones. In a world where personal information can be easily accessible online, there is a risk of sensitive and private information being misused or used in a harmful way. In addition, the continued presence of profiles on social networking and other online services can cause emotional discomfort to family and friends of the deceased, especially if these profiles remain active and are the subject of unauthorized activity.

Policies and Technologies for the Right to be Forgotten Post Mortem

To address these concerns, some advocates of the Right to be Forgotten post mortem advocate the implementation of policies and technologies that allow individuals to control and manage their personal data even after their death. This could include the possibility of setting out specific instructions in digital wills on how online profiles and other digital data should be handled after death. In addition, consideration could be given to introducing legal mechanisms that would allow family members to request deletion or restricted access to a deceased person’s personal data in certain circumstances.

Cases and Legislation

Jurisprudence on the right to post-mortem oblivion has already begun to be generated in different countries, proving that this is an increasingly latent concern. Some of the most salient issues are as follows:

  1. Case Google Spain SL, Google Inc. v Spanish Data Protection Agency, Mario Costeja González (2014).This case set an important precedent in the European Union with respect to the right to be forgotten online. Although it does not specifically address the right to be forgotten post mortem, it laid the groundwork for the discussion on online privacy and the management of personal information.
  2. United States case: Haeggquist & Eck, LLP v. Facebook, Inc. (2017)In this case, the heirs of a deceased Facebook user sued the company to gain access to the deceased user’s account and messages. Facebook initially denied access, citing privacy laws and its own policies, but they eventually settled out of court to provide limited access to the account.
  3. Legislation in some U.S. states: Some states have enacted specific laws regarding the management of online accounts after the death of a user. For example, in California, the Digital Account Access for Deceased Users Act (AB-691) allows heirs to request access to online accounts of a deceased person, albeit with certain restrictions and requirements.

Arguments Against the Right to Post Mortem Forgetting

However, there are also arguments against this right. Some argue that the preservation of historical memory and access to information are fundamental values that must be protected, even when personal data is involved. In this sense, the indiscriminate deletion of digital data related to the deceased could have negative consequences for society as a whole, limiting the ability of researchers, historians and genealogists to access valuable information. While it is questionable whether one can go against someone’s will expressed in wills, it is possible that in the future we will see more cases of people including provisions related to the management of their online presence in their wills.

Future of the Right to be Forgotten Post Mortem

With increased awareness of online privacy and the importance of protecting one’s digital reputation even after death, it is conceivable that some people may wish to leave clear instructions on how they want their social media profiles, email accounts and other personal data handled online after their death.

In addition, the implementation of post-mortem Right to be Forgotten policies poses a number of technical and practical challenges. For example, how can you ensure that personal data is effectively and permanently deleted from all online systems and servers? Who should be responsible for carrying out this process and what resources would be needed to do so effectively?


Despite these challenges, many argue that the Right to be Forgotten post mortem is fundamental to ensuring respect for the privacy and dignity of the deceased and their families in the digital age. By providing individuals with greater control over their personal data even after their death, a greater sense of autonomy and digital empowerment can be promoted.

In conclusion, the right to post-mortem oblivion raises a number of complex issues that require careful consideration by legislators, technologists and society as a whole. While it is important to preserve historical memory and access to information, it is also crucial to protect the privacy and dignity of the deceased and their loved ones. By finding the right balance between these values, we can move towards a digital future that is fairer and more respectful of human rights.

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