INTRODUCTION
Has the idea of meeting someone dead ever crossed your mind? What if you ask Google, and it turns out that whatever you were thinking is indeed possible? You can get to meet people who aren’t alive. This has been made viable by the Digital Afterlife Industry (DAI). The industry encompasses various services and posthumous online interaction is one of them. It is gaining traction globally by virtually reconstructing dead people through multiple technologies such as Virtual Reality and Artificial Intelligence. Even if they are no longer physically alive, this industry focuses on generating their digital version. It makes it possible by using their data from their text messages, emails, voice notes, photos, videos and social media posts to create their digital persona which interacts with their friends and families exactly as they used to do.
According to a joint report by industry body IAMAI and market data analytics firm Kantar, 759 million Indians are active Internet users and this number is expected to grow to 900 million by 2025. With the digitalization process going on in India, it is normal for people to have a digital presence. We don’t realise how much of a digital life we are living today. Most of us own digital assets in the forms of emails, online accounts, cloud storage, social media accounts, net banking IDs, passwords, etc. These assets have become an intrinsic part of our lives. It would be apt to say that getting access to someone’s digital assets gives a sneak peek into their personal life. So, it becomes primarily important to protect these assets and this is where data protection laws come into the picture. Such laws are meant to safeguard the personal data of individuals and ensure that their data are not shared without their consent. But what happens to the data in case the individual is not alive to give consent?
DIGITAL WILLS
A report by Moneylife Foundation has revealed that a massive sum of over Rs 2 lakh crore of unclaimed money of people lies with the government. One of the prominent reasons for this is the lack of awareness among asset owners about making a will to transfer their assets to the next generation. Section 2(h) of the Indian Succession Act defines will. It is a legal declaration of a person’s intention regarding the transfer of his property after his death. This section deals with tangible property but with the emergence of digital technology, the protection of digital assets has become relevant. Taking this into consideration, the concept of digital will is gaining popularity. It deals with the management and distribution of a person’s digital assets after his death and is electronically written, signed or attested.
However, digital wills are not legally recognised in India. Section 2 (ta) of the Information Technology Act defines Electronic Signature, but an exception to this has been provided under section 1(4), which states that nothing in the Act shall apply to a will as defined in clause (h) of section 2 of the Indian Succession Act. This means that E-signature is not acknowledged when it comes to wills in India. There are no such laws to safeguard the digital assets of citizens. The term “property” used in the definition of wills under the Indian Succession Act does not include digital property and leaves the digital legacies void of legal protection in India.
In the USA, there is a law with the name Revised Uniform Fiduciary Access to Digital Assets Act, which deals with the management of people’s digital assets after their death. This law furnishes the Executor of an Estate with access to someone’s online accounts after death giving them the power to manage someone’s digital assets as well. Similarly, some of the social media companies have introduced several tools and features to manage digital assets in the event of death. In 2015, Facebook released a feature called “legacy contact”, which allows users to choose a person to manage their account post-death. X also has a policy for deceased users where it permits the deceased user’s legal successor to deactivate his account.
POSTHUMOUS DATA PRIVACY
In the celebrated case of Justice K. S. Puttaswamy v Union of India, a nine-judge bench had given a unanimous judgement where the right to privacy was reaffirmed as a fundamental right under Article 21 of the Constitution of India. The right to privacy was held to be an intrinsic aspect of dignity, autonomy and liberty of the living beings. However, the case isn’t the same for a deceased individual as there are no explicit laws to preserve their privacy. Man dies, but data doesn’t cease to exist. The digital assets live on after the death of a person and become a point of concern because the Digital Afterlife Industry uses the data of deceased individuals to bring them back “digitally”. It might sound impressive but delving deeper would unravel the gloomy part. There are chances that the deceased may not have given consent to their data used for a digital afterlife and the data might get misused or manipulated for malafide purposes. This raises apprehensions about posthumous data privacy and the need for regulations to protect one’s data post-death. Although this industry is yet to gain popularity in India, several prominent players are growing at a good pace globally.
CASE LAWS ON POSTHUMOUS PRIVACY
- Jayalalitha case – The division bench of Madras applied the legal maxim ‘actio personalis moritur cum persona’ meaning the personal right of action dies with the person. It was held that the right to privacy comes to an end once the person dies and cannot be inherited or enforced by his legal heirs.
- Sushant Singh Rajput case – The court rejected the plea of the actor’s father seeking an injunction of a film based on the late actor’s life and gave a judgement that the right to privacy, publicity and personality can’t be inherited and cease to exist after the actor’s death.
WAY FORWARD
- Digital Estate Planning – People should be made aware of digital estate planning, where they can maintain a document containing their online information regarding digital assets and online accounts. This document can further be followed by the legal successors of the demised to identify their legal assets.
- Legal Framework for Digital Wills – The government should come up with a comprehensive legal framework to recognise and enforce digital wills in India.
- Amendments to the existing laws – Amendments should also be made to the existing laws. Digital assets should be included in the definition of wills under the Indian Succession Act. The Digit Personal Data Protection Act should also be amended to protect the data of the deceased.
CONCLUSION
In a nutshell, “data is money” is the new “time is money” in the current scenario. If held in the wrong hands, it can have a menacing effect on the one who owns the data. So, the gap in the Indian legal system regarding digital will and posthumous data privacy needs to be addressed keeping in mind the booming Digital Afterlife Industry.
Author(s) Name: Anjali Ranjan (Bharati Vidyapeeth (Deemed to be University) New Law College, Pune)
