GDPR
The issues of consent and post-mortem image rights are complex and crucial in the context of personalized funeral tributes using AI and cinematographic tools. In France, legislation has evolved to regulate these aspects, but gray areas persist, particularly with the rapid emergence of new technologies.
Consent and Image Rights: How to manage the deceased's personal data?
Legal Framework in France
The processing of personal data of the deceased is primarily governed by the French Data Protection Act of January 6, 1978, in particular Articles 84 to 86, as amended by Ordinance No. 2019-964 of September 18, 2019. The European General Data Protection Regulation (GDPR), although primarily aimed at living individuals, indirectly influences the consideration of post-mortem data.
1. Consent of the Deceased: The Overriding Will
The fundamental principle is that any person may define, during their lifetime, guidelines regarding the retention, deletion, and communication of their personal data after their death. These instructions can be:
General: These relate to all of the individual's data and can be recorded with a trusted digital third party or a notary.
Specific: These may concern specific data processing, for example, access to a social media account, the publication of certain photos, or the creation of a digital tribute.
These instructions must be clear and express. They can be modified or revoked at any time by the person during their lifetime. The goal is to ensure that the deceased's final wishes are respected, even after their death.
2. Postmortem Image Rights: A Different Protection
Image rights, as a personality right, are intrinsically linked to the individual. In principle, they expire with the death of the person. Since the deceased can no longer give their consent, one might think that their image becomes free for use. However, French case law and doctrine have developed protection for the image of the deceased on other grounds:
Non-pecuniary damage to relatives: The dissemination of the image of a deceased person can cause personal non-pecuniary damage to heirs or relatives. If the use of the image is deemed indecent, disrespectful, sensationalist, or damaging to the memory, honor, or reputation of the deceased, the rights holders can take legal action to obtain compensation and stop the dissemination. The concept of "moral prejudice" is left to the discretion of the courts.
Privacy: In some cases, the post-mortem dissemination of images may also be considered an invasion of the privacy of loved ones, particularly if these images reveal intimate aspects of the life of the deceased or their family.
Copyright: If the images or videos were created by the deceased (e.g., photographs taken by them), the copyright in these works is transferable to the heirs and lasts for 70 years after death. This gives them the right to control the reproduction and representation of these works.
3. Who has the right to decide on post-mortem use in the absence of instructions?
This is where the situation becomes more complex. In the absence of clear instructions left by the deceased:
Heirs: The French Data Protection Act provides that heirs may exercise certain rights over the deceased's data, including:
The right to access data if necessary to settle the estate.
The right to object to the closure of user accounts and to the continued processing of data.
They may also obtain the release of personal data that constitutes family memorabilia (e.g., photographs).
Disagreement between heirs: In the event of disagreement between heirs regarding the use of the deceased's data or image, the competent regional court will decide.
Data controllers (platforms, funeral services): They are required to consider the heirs' requests and implement the deceased's instructions, if applicable. They have their own policies regarding the management of deceased accounts (e.g., "memorial account" on Facebook).
Implications for Innovative Funeral Ceremonies:
For companies offering personalized tributes using AI and cinematic tools, this means:
Ultimate priority to the deceased's instructions: Ensure that the deceased has left clear instructions on how their data and image may be used for their ceremony. A "digital will" or specific advance directives for this purpose would be ideal.
Consent of beneficiaries: In the absence of express instructions from the deceased, obtain the consent of all heirs for the use of personal data (photos, videos, intimate writings) and for the creation of tributes based on AI or cinematic tools. Detailed written authorization is strongly recommended.
Respect for dignity and memory: Regardless of consent, ensure that the tribute always respects the dignity of the deceased and does not
