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What post-mortem privacy may teach us about privacy

What post-mortem privacy may teach us about privacy
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, capitalising on its outlier status in common law jurisdictions as a privacy-type duty that survives the death of the rightsholder. The discussion takes the case law in England and Wales and by the European Court of Human Rights on post-mortem medical confidentiality as a springboard for interrogating how these judgments 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 by extension 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 concurrent or competing claims on her legacies and incidentally also carry her post-mortem privacy.

2212-4748
Kohl, Uta
813ff335-441f-4027-801b-4e6fc48409c3
Kohl, Uta
813ff335-441f-4027-801b-4e6fc48409c3

Kohl, Uta (2022) What post-mortem privacy may teach us about privacy. Computer Law & Security Review, 47, [105737]. (doi:10.1016/j.clsr.2022.105737).

Record type: Article

Abstract

This paper approaches the debate about the protection of digital legacies through a medical confidentiality lens, capitalising on its outlier status in common law jurisdictions as a privacy-type duty that survives the death of the rightsholder. The discussion takes the case law in England and Wales and by the European Court of Human Rights on post-mortem medical confidentiality as a springboard for interrogating how these judgments 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 by extension 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 concurrent or competing claims on her legacies and incidentally also carry her post-mortem privacy.

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More information

Accepted/In Press date: 3 June 2022
Published date: November 2022
Additional Information: Publisher Copyright: © 2022

Identifiers

Local EPrints ID: 458033
URI: http://eprints.soton.ac.uk/id/eprint/458033
ISSN: 2212-4748
PURE UUID: e49bbec1-c0d0-40f8-a6ff-8cea034f2767
ORCID for Uta Kohl: ORCID iD orcid.org/0000-0002-8616-9469

Catalogue record

Date deposited: 27 Jun 2022 16:48
Last modified: 17 Mar 2024 03:54

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