חומר רקע
Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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DIGITAL REMAINS AND POST-MORTEM PRIVACY IN THE UK:
WHAT DO USERS WANT?
Dr Edina Harbinja, Aston University, Birmingham, United Kingdom; Dr Tal Morse, Hadassah Academic
College, Jerusalem, Israel and Prof Lilian Edwards, Newcastle University, Newcastle, United Kingdom
Abstract The information age has led to extensive personal data aggregation, posing various challenges
for posthumous privacy and digital remains. Users are often unaware of tools for managing their digital
remains, laws in the area are predominantly silent or inadequate, and the scholarship has argued for
appropriate legal and technological solutions. Our study of 1,766 adult UK residents’ attitudes, first of its
kind in the UK, reveals a desire for control over digital remains, but low awareness and utilization of
existing tools. These phenomena are known in the literature as posthumous privacy paradox and the
inverted posthumous privacy paradox. Based on our findings, complemented by earlier theoretical and
doctrinal research, our recommendations include law reforms in data protection and recognition of online
tools for managing digital remains, as well as a more comprehensive EU-wide reform that includes several
relevant areas of law.
Keywords:
Digital legacy; Digital remains; Empirical inquiry into postmortem privacy; Personal data of the
deceased; Posthumous privacy paradox; Postmortem privacy;
I.
INTRODUCTION
The rise of the information age is manifested in constant and extensive documentation and aggregation
of people’s personal data. Almost every social interaction leaves a digital footprint, and all these footprints
are stored and aggregated by technology companies. As long as the user, also known as the data subject
in the data protection law, is alive, she can control the fate of the data. But once the data subject dies,
she can no longer control the orphaned personal data and digital assets, also known as digital remains.
This raises questions about posthumous privacy and access to personal digital data. Analogies to tangible,
physical personal information, such as letters, that the deceased leaves behind often fail, since digital
personal information differs in scope, in content, in searchability, in sensitivity, in duplicability and
durability. Moreover, access to physical orphaned information is governed by social norms, whereas
access to digital remains requires the intervention of the technology companies that store the data and
serve as intermediaries. This raises legal questions and incentivises technological solutions.
Electronic copy available at: https://ssrn.com/abstract=4813651
Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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On the technological front, there are digital tools for managing access to digital remains (e.g., Facebook
and Apple Legacy Contact, Google Inactive Account Manager), however anecdotal and empirical evidence
suggest that most users worldwide are unaware of these possibilities, and they tend not to activate these
tools. Furthermore, the rise of advanced digital afterlife technologies based on artificial intelligence (AI),
including ghostbots invites new social, as well as legal challenges, that pertain to personality rights and
posthumous privacy.1
Theoretical legal discussion about the notion of posthumous privacy have been taking place for more than
two decades.2 Various legal scholars have addressed the conundrums of posthumous privacy in a digital
age,3 and these issues were also debated and ruled by jurisdictions around the world.4 And while the social
and psychological aspects of accessing digital remains for purposes of mourning and commemoration was
studied empirically,5 relatively limited scholarly attention was given to the users’ perspectives on
posthumous privacy and managing access to digital remains.6
This study aims to fill this gap by exploring attitudes and behaviours of UK internet users. Drawing on a
national representative online survey of 1,766 adult UK residents, the study addresses the various uses of
1 E , ‘Governing ghostbots’, 48 COMPUTER LAW & SECURITY REVIEW 105791 (2023); Mauricio Figueroa-Torres, Affection
as a Service: Ghostbots and the Changing Nature of Mourning, 52 Computer Law & Security Review 105943 (2024),
https://www.sciencedirect.com/science/article/pii/S0267364924000104 (last visited Mar 25, 2024).
2 E Harbinja, DIGITAL DEATH, DIGITAL ASSETS AND POST-MORTEM PRIVACY: THEORY, TECHNOLOGY AND THE LAW (2022).
3 E Harbinja, ‘Post-mortem privacy 2.0: theory, law, and technology’, 31 INTERNATIONAL REVIEW OF LAW, COMPUTERS 26
(2017); E Harbinja and L Edwards, ‘Protecting post-mortem privacy: reconsidering the privacy interests of the
deceased in a digital world’., 32 CARDOZO ARTS & ENTERTAINMENT 83 (2013); M Birnhack and T Morse, ‘Digital remains:
property or privacy?’, INTERNATIONAL JOURNAL OF LAW AND INFORMATION TECHNOLOGY eaac019 (2022); J. C. Buitelaar,
‘Post-mortem privacy and informational self-determination’, 19 ETHICS AND INFORMATION TECHNOLOGY 129 (2017); Tina
Davey, Until Death Do Us Part: Post-mortem Privacy Rights for the Ante-mortem Person, 2020; Gianclaudio
Malgieri, ‘R.I.P.: Rest in Privacy or Rest in (Quasi-)Property? Personal Data Protection of Deceased Data Subjects
between Theoretical Scenarios and National Solutions’, in DATA PROTECTION AND PRIVACY: THE INTERNET OF BODIES 143
(Ronald Leenes et al. eds., 2018); David Erdos, ‘Dead ringers? Legal persons and the deceased in European data
protection law’, 40 COMPUTER LAW & SECURITY REVIEW 105495 (2021).
4 E.g. In Re Ellsworth, No. 2005-296, 651-DE (Mich. Prob. Ct. 2005); In re Request for Order Requiring Facebook,
Inc. to Produce Documents and Things, C 12-80171 LHK (PSG) (N.D. Cal.; Sept. 20, 2012); Kammergericht, Urteil
vom 31. Mai 2017, Aktenzeichen 21 U 9/16 www.berlin.de/gerichte/presse/pressemitteilungen-der-ordentlichen-
gerichtsbarkeit/2017/pressemitteilung.596076.php.
5 Jed R. Brubaker, Gillian R. Hayes & Paul Dourish, ‘Beyond the Grave: Facebook as a Site for the Expansion of
Death and Mourning’, 29 THE INFORMATION SOCIETY 152 (2013); Jed R. Brubaker et al., ‘Stewarding a Legacy:
Responsibilities and Relationships in the Management of Post-mortem Data’, in PROCEEDINGS OF THE SIGCHI
CONFERENCE ON HUMAN FACTORS IN COMPUTING SYSTEMS 4157 (2014); Jed R. Brubaker & Gillian R. Hayes, ‘“We will never
forget you [online]”: An empirical investigation of post-mortem myspace comments’, in PROCEEDINGS OF THE ACM
2011 CONFERENCE ON COMPUTER SUPPORTED COOPERATIVE WORK 123 (2011); Jed R. Brubaker & Vanessa Callison-Burch,
‘Legacy Contact: Designing and Implementing Post-mortem Stewardship at Facebook’, in PROCEEDINGS OF THE 2016
CHI CONFERENCE ON HUMAN FACTORS IN COMPUTING SYSTEMS 2908 (2016); Jo Bell, Louis Bailey & David Kennedy, ‘‘We do
it to keep him alive’: bereaved individuals’ experiences of online suicide memorials and continuing bonds’, 20
MORTALITY 375 (2015); Natalie Pennington, ‘You Don’t De-Friend the Dead: An Analysis of Grief Communication by
College Students Through Facebook Profiles’, 37 DEATH STUDIES 617 (2013).
6 Hiroshi Nakagawa & Akiko Orita, ‘Using deceased people’s personal data’, AI & SOCIETY 1 (2022); T Morse and M
Birnhack, ‘Digital Remains: The Users’ Perspectives’, in DIGITAL AFTERLIFE 107 (Maggi Savin-Baden & Victoria Mason-
Robbie eds., 2020).
Electronic copy available at: https://ssrn.com/abstract=4813651
Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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online services, attitudes towards privacy and postmortem privacy, awareness of digital afterlife
industries and behaviours and activities regarding end-of-life decision making. The questions allow a
better understanding if and how individuals are concerned with what happens to their personal data
online after death; and whether new tools like Google Inactive Account Manager (IAM), Apple Legacy
Contact and Facebook Legacy Contact are proving helpful. Findings reflect users’ perceptions of
posthumous privacy in the light of digital applications, as well as potential mismatches between how
people understand posthumous privacy and how they operate in the digital realm to secure their wishes
in this regard.7
The main findings of the survey reveal that individuals place importance on privacy (and postmortem
privacy) and express a desire to exert control over their digital remains. However, many believe they have
nothing to hide online, which leads them to view exercising control as granting access to their digital
remains. Due to limited awareness and utilization of legacy contacts (LC) and inactive account
management (IAM), as well as low adoption rates of social network wills, this desire for control often
remains unfulfilled. Therefore, the empirical findings of our study complement theoretical and doctrinal
arguments and scholars’, including our, recommendations that new laws/regulations should be passed in
the UK (and elsewhere) to address these issues. These laws would aim to extend privacy and data
protection to a limited time and scope, post-mortem, and harmonise succession law, wills and probate
with personality and privacy interests. Since this is primarily an empirical study, we will not examine these
recommendations in much detail. The development of law and policy has been a subject of our earlier
research, and their refinement will be a subject of our further doctrinal and policy research.
II.
LITERATURE REVIEW
Post-Mortem Privacy
Post-mortem privacy (PMP) scholarship has grown significantly in the last decade. Harbinja’s early
conceptualisation of post-mortem privacy was “the right of a person to preserve and control what
becomes of his or her reputation, dignity, integrity, secrets or memory after death”.8 In Harbinja’s later
work, she posits that autonomy should, in principle, transcend death, allowing individuals to control their
privacy, identity and personal data post-mortem, analogous to their post-mortem control of property
through the concept of testamentary freedom.9 In her even more recent work, Harbinja has put forward a
concept of postmortal privacy, relevant for the totality of one’s digital remains, one’s postmortal self,
existing in and through technology.10 It offers a grounding for considering digital remains more
comprehensively, especially in the context of digital resurrection, bots, post-mortem deepfakes and other
technology that offers ways of reviving the deceased.11
7 Harbinja, ‘The posthumous privacy paradox: Privacy preferences and behavior regarding digital remains’, NEW
MEDIA & SOCIETY 1343 (2022).
8 Harbinja (n 2) 103.
9 Harbinja, ‘Post-Mortem Privacy: Theory, Law, and Technology’ (n 2).
10 Harbinja (n 2).
11 For more information about digital afterlife industries, please see Debra J Bassett, The Creation and Inheritance
of Digital Afterlives (Palgrave Macmillan 2022) <https://link.springer.com/book/10.1007/978-3-030-91684-8> (last
visited Mar 25, 2024).; Maggi Savin-Baden, Digital Afterlife and the Spiritual Realm (CRC Press 2021); ibid; Morse,
‘Digital Necromancy: Users’ Perceptions of Digital Afterlife and Posthumous Communication Technologies’ (2024)
Electronic copy available at: https://ssrn.com/abstract=4813651
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In her comprehensive theoretical and doctrinal postmortem privacy study, Davey proposed the extension
of the protection of privacy afforded by article 8 of the European Convention of Human Rights and
introduced the definition of PMP as “the right of the person to respect for her private and family life post-
mortem”.12 Davey contends that this extension of article 8 could be achieved by using the ECtHR
teleological approach to interpretation in the digital age and readiness to extend the scope of article 8 to
an extent in certain other situations.13 In addition, she argues that the extension should include “relational
post-mortem privacy”. She builds this aspect of PMP on the harm principle related to the living relatives
and refers to some of the recent ECtHR and UK jurisprudence,14 “to include private matters about the
deceased which affects the privacy interests of the relatives themselves”.15
Buitelaar has put forward another influential theory.16 He aimed to develop a theory that would justify
“…protection for the various forms of post-mortem presence that are likely to subsist in the future”.17
Builtelaar thus endows a person with a “digital double” and this post-mortem digital persona should be
afforded with “…with an appropriate locus in the legal framework that governs the survival or extinction
of the rights and duties of subjects”.18 In his theory, this digital double is effectively the bearer of the
“continuation of the privacy rights of the ante-mortem owner”.19 The argument develops in that due to
the “…overwhelming persistence of digital persona on the internet without there being a living
counterpart…” the post-mortem digital persona should be ascribed the “appropriate locus”.20
Other accounts also propose a nuanced approach to post-mortem privacy. Birnhack and Morse analyse the
legal frameworks regarding digital remains and point to four legal categories of digital remains: intangible
items, information about property, intellectual property and personal data. Whereas the three formers
fall within the property framework, only personal data falls within the privacy framework. Given the
dispute about the applicability of post-mortem privacy, they suggest that privacy law “should protect
reasonable expectations of the living regarding their post-mortem condition, subject to balancing them
with competing interests and rights of the living”.21 Another approach suggests to treat digital remains as
quasi-property. In this research, Malgieri examines the key issue of post-mortem data protection, i.e. the
”problem of the subject” (there is no interest to be protected as there is no narrator to represent that
interest dynamically). He proposes a useful analogy between personal data of deceased persons (as “life-
transcending digital body”) and the deceased’s human body. He them proposes the solution that
240 Information, Communication & Society 27 <https://doi.org/10.1080/1369118X.2023.2205467> (last visited
Mar 25, 2024)..
12 Tina Davey, Until Death Do Us Part: Post-Mortem Privacy Rights for the Ante-Mortem Person (PhD Thesis,
University of East Anglia 2020) 226. 226
13 Ibid, 226; see Putistin v. Ukraine [2013] ECHR 1154.
14 Dzhugashvili v. Russia (2014) ECHR 1448, Éditions Plon v France [2004] ECHR 200, Lewis v Secretary of State for
Health [2008] EWHC 2196, Putistin v. Ukraine (2013) ECHR 1154; Davey ibid, 184.
15 Davey (n 12), 222.
16 JC Buitelaar, ‘Post-Mortem Privacy and Informational Self-Determination’ (2017) 19 Ethics and Information
Technology 129.
17 Ibid, 131.
18 Ibid, 135.
19 Ibid, 139.
20 Ibid, 135.
21 M Birnhack and T Morse, ‘Digital Remains: Property or Privacy?’ [2022] International Journal of Law and
Information Technology eaac019, 3 <https://doi.org/10.1093/ijlit/eaac019> (last visited Mar 25, 2024)..
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combines post-mortem privacy and quasi-property of the bereaved persons (descendants, heirs) ”on the
digital body” of the deceased person. His quasi-property conception originates from common law.22
The issue of post-mortem privacy becomes even more pressing in a digital age, since individuals, the data-
subjects, generate more and more data daily, with almost every activity they perform. This data, arguably,
represents who they are and the multifaceted aspects of their personality. Upon death, this accumulated
data can serve multiple purposes, like mourning and commemoration, that require access to the users’
orphaned profiles and accounts, i.e., digital remains, and here lies the tension between postmortem
privacy and other motivations, to which we turn next.
Access to Digital Remains and its Purposes
Most empirical studies in the area focus on access to digital remains and originate from social science
scholarship. While grief scholars stress that processing grief through digital media is idiosyncratic,23
studies show that some people find comfort in online interactions with deceased users’ profiles. Egnoto
and colleagues provide a point of departure with their work on the perceptions, motivations and activities
of online grief and death on social media.24 The authors test the Transcorporeal Communication model
(TcC) proposed by Groot,25 which posits that “death does not force the termination of interpersonal
relationships”,26 rather exchanges can continue post-mortem and indeed mimics traditional relationships,
with several obvious caveats.27 The study centred around data collected from a survey of 270
undergraduates who use social media at the University of Buffalo (New York) in 2011. Findings suggested
that grieving online is extremely common. Moreover, when individuals experience a death in a social
network setting, this significantly (and positively) influences their perceptions around the acceptability of
using social media as a vector of mourning. Other studies show that orphaned profiles, i.e., profiles of
deceased users, can serve as online sites of mourning, where the bereaved come together, engage with
the digital remains and respond to other bereaved people who knew the deceased.28 This interaction with
22 Malgieri (n 3).
23 Mórna O’Connor and Elaine Kasket, ‘What Grief Isn’t: Dead Grief Concepts and Their Digital-Age Revival’ in
Tanya Machin and others (eds), Social Media and Technology Across the Lifespan (Springer International Publishing
2022) <https://doi.org/10.1007/978-3-030-99049-7_8> (last visited Mar 25, 2024)..
24 Michael J Egnoto and others, ‘Death on the Digital Landscape: A Preliminary Investigation into the Grief Process
and Motivations behind Participation in the Online Memoriam’ (2014) 69 OMEGA-Journal of Death and Dying 283.
25 Jocelyn M Degroot, ‘Transcorporeal Communication and the Presence of the Deceased Other’, National
Communication Association convention (2009).
26 Egnoto and others (n 24) 286.
27 See also Dorthe Refslund-Christensen and Kjetil Sandvik, ‘Death Ends a Life, Not a Relationship: Objects as Media
on Children’s Graves’ in Dorthe Refslund-Christensen and Kjetil Sandvik (eds), Mediating and Remediating Death
(Ashgate 2014).
28 Tony Walter and others, ‘Does the Internet Change How We Die and Mourn? Overview and Analysis’ (2012) 64
OMEGA - Journal of Death and Dying 275 <https://doi.org/10.2190/OM.64.4.a> (last visited Mar 25, 2024).; Julie
Alev Dilmaç, ‘The New Forms of Mourning: Loss and Exhibition of the Death on the Internet’ [2016] OMEGA -
Journal of Death and Dying 0030222816633240 <https://doi.org/10.1177/0030222816633240> a(last visited Mar
25, 2024).; Jed R Brubaker, Gillian R Hayes and Paul Dourish, ‘Beyond the Grave: Facebook as a Site for the
Expansion of Death and Mourning’ (2013) 29 The Information Society 152
<http://dx.doi.org/10.1080/01972243.2013.777300> a(last visited Mar 25, 2024).; Jensen Moore and others,
‘Social Media Mourning: Using Grounded Theory to Explore How People Grieve on Social Networking Sites’ [2017]
OMEGA - Journal of Death and Dying 0030222817709691 <https://doi.org/10.1177/0030222817709691> (last
visited Mar 25, 2024).; Jensen Moore, ‘Mourning Using Social Media: The New Frontier for Death Communication’,
Electronic copy available at: https://ssrn.com/abstract=4813651
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the digital remains is meaningful for the bereaved, and when they are unable to access these accounts
due to deletion or locking of the accounts, the bereaved experience this inability to engage with the profile
as “second loss”.29
A number of investigations also employ a mixed methods approach to understanding death online. A
combination of survey data and content analysis of online materials is a popular choice in this area. For
instance, Nager and De Vries employed questionnaire data and content analysis of memorial websites to
measure elements of attachment style and grief shown by adult daughters who had lost mothers.30
Similarly, Brubaker and Hayes used a blend of descriptive statistical modelling and inductive thematic
analysis to identify patterns and themes from MySpace comments posted on deceased users’ profiles.31
Finally, Carroll and Landry undertook both ethnographic analysis of MySpace memorials and survey data
from Facebook users to compare how the two sites are used in cases of bereavement and
memorialisation.
While access to digital remains serves mourning and commemoration purposes, the orphaned accounts
often hold personal content of the deceased or information about the deceased. When they were alive,
the users were able to control the distribution of information via their profiles and accounts, but after
they die, they can longer exercise control over the content stored in the profile. This raises the question
of post-mortem privacy introduced earlier, and the tensions between the deceased wishes to manage
their privacy after death, and the wishes of their loved ones to access these digital remains for mourning
and commemoration.
Orphaned profiles are a growing phenomenon, as more people with active profiles on social network sites
(SNS) perish. Öhman and Watson32 interrogate recent ambiguous claims that social media platforms are
becoming “digital graveyards”.33 The authors undertook a macroscopic quantitative analysis of Facebook’s
deceased users, to understand how the number of deceased user profiles will develop over the course of
time and when the number of deceased users is expected to exceed the number of living users. Under the
conservative assessments, the dead will overtake the number of living users’ profiles in the next fifty years,
where the alternative scenario predicts this happening in the first few decades of the 22nd century.34
The authors raise questions surrounding the power that private online platforms hold in the accumulation
of dead profiles and their connected data. Platforms like Facebook and Twitter wish to avoid giving their
The Emerald Handbook of Computer-Mediated Communication and Social Media (Emerald Publishing Limited
2022).
29 Bassett (n 11).
30 Elizabeth A Nager and Brian De Vries, ‘Memorializing on the World Wide Web: Patterns of Grief and Attachment
in Adult Daughters of Deceased Mothers’ (2004) 49 OMEGA-Journal of Death and Dying 43.
31 Jed Brubaker and Gillian Hayes, ‘We Will Never Forget You [Online]: An Empirical Investigation of Post-Mortem
MySpace Comments’ (Proceedings of the ACM Conference on Computer Supported Cooperative Work, Hangzhou,
19-23 March 2011) < https://dl.acm.org/doi/10.1145/1958824.1958843>
32 Carl J Öhman and David Watson, ‘Are the Dead Taking over Facebook? A Big Data Approach to the Future of
Death Online’ (2019) 6 Big Data & Society 2053951719842540 <https://doi.org/10.1177/2053951719842540> (last
visited Mar 25, 2024)..
33 Brandon Ambrosino, ‘Facebook Is a Growing and Unstoppable Digital Graveyard’ (14 March 2016)
<https://www.bbc.com/future/article/20160313-the-unstoppable-rise-of-the-facebook-dead> (last visited Mar 25,
2024)..
34 ibid 5.
Electronic copy available at: https://ssrn.com/abstract=4813651
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users the feeling as if they wander a digital cemetery. Accordingly, recently Google announced it is to
delete accounts after two years of inactivity.35 Twitter has already deleted inactive accounts and later
reverted due to users who protested against the deletion of their loved ones’ accounts.36 And Facebook
informed its users it is to classify differently accounts suspected as belonging to dead users, so they do
not appear in its “public spaces” or automated messages.37 It is suggested then, considering Öhman and
Watson’s results, that there is now a need for a decentralised multi-stakeholder archival approach to
curating and preserving the dead online.38 Ultimately, while the study might not pertain directly to
particular issues of post-mortem privacy, findings from this research are nonetheless important, providing
a strong empirical basis on which to underpin the significance of this subject matter for future studies and
policy recommendations.
A recent study by Harbinja, McVey and Edwards39 offers a qualitative insight into post-mortem privacy
challenges and understanding of key stakeholders’ perspectives in the UK. They interviewed a sample of
nineteen legal professionals, civil society representatives and regulators, primarily based in the UK.
Emergent themes they discover in the study include: post-mortem privacy awareness and the lack of it in
the practitioners’ client base; divergent taxonomies of digital remains and misunderstanding of
terminology amongst the stakeholders; platforms/tech/contracts that impede access to digital remains
and create practical and legal issues for the practice and their clients; the limitation of current practice
(i.e., the lack of clarity and legal certainty, professional risk and liability, platform behaviours etc.), and
change/reform (the overwhelming call for reforming succession law, wills and probate, as well as privacy
and data protection and platform policies). The key findings include the need for law reform in succession,
will and probate, as well as aspects of privacy and data protection. There Is also a clear necessity to work
on raising users’ awareness and improving technological solutions for the disposition of digital remains
and the protection of post-mortem privacy.
Since digital remains fulfil mourning and commemorative purposes, and given the “risk” of profile deletion
and fear of second loss, what do users want? How do users perceive access to digital remains?
Legacy or Privacy – What Do Users Want?
Several studies have explored the wishes of users with regards to accessing digital remains. A significant
exploratory online survey was recently conducted by Nakagawa and Orita.40 The researchers surveyed
2749 members of the Japanese general public to clarify and understand how people want their personal
data to be managed after their death; whether they allow their personal data, such as SNS message logs,
to be used after their death; if they prefer to receive any income from their digital heritage; what
attributes make people’s decisions different and if the frequency of Internet use make a difference in their
decision. A novel finding indicates that approximately 20% of respondents would allow the commercial
use of their personal data if they could receive compensation during their lifetime, while approximately
35 https://blog.google/technology/safety-security/updating-our-inactive-account-policies/
36Abrar Al-Heeti ‘Twitter hits pause on plan to delete inactive accounts’ (CNet, 27 November, 2019)
https://www.cnet.com/tech/mobile/twitter-hits-pause-on-plan-to-delete-inactive-accounts/
37Facebook, ‘Making It Easier to Honor a Loved One on Facebook After They Pass Away’, 9 April, 2019
https://about.fb.com/news/2019/04/updates-to-memorialization/
38 ibid 10.
39 E Harbinja, M McVey and L Edwards, “Post - mortem privacy and digital legacy - a qualitative empirical enquiry”,
Script-ed, 2024, forthcoming.
40 Hiroshi Nakagawa and Akiko Orita, ‘Using Deceased People’s Personal Data’ [2022] AI & SOCIETY 1.
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77% replied that they wish for an automatic deletion of the real-name accounts. Yet, in another study,
that was conducted amongst Japanese university students, respondents replied that they wish to keep
their family and friends’ data.41 This shows the tension between keeping private information of the self
and the interest in accessing private information of the other.
Bovero and colleagues used a survey with both quantitative and qualitative components to investigate a
particular populations’ approach to digital death.42 They focused on how a sample of 1281 Italians –
ranging from 14-77 years old – dealt with death on Facebook. The survey, that was conducted in 2017,
found that 55.8% of the participants did not want to leave traces after death on Facebook or on the web,
and 80.1% did not want their Facebook account remained active and managed by others. An Israeli study
from 2017 found that people vary in their attitudes towards access to digital remains.43 While
approximately half the population wish to leave full access to their digital remains in emails, SNS and cloud
storage, a third of the population wish to delete their accounts posthumously, and approximately 20%
wish to control who will be granted access to which content, however these approaches varied according
to the different platforms. This variance in attitudes across countries and platforms reveals the difficulties
in forming a universal, unified policy.
Qualitative studies have been scarce and a number of them directly relate to the development and use of
Facebook’s Legacy Contact.44 Data collection methods for qualitative research in this area typically focus
on mining data from the social media platform itself. Bereavement pages, memorial groups or individual
posts and comments provide rich sources of data, combined with relative ease of collection for the
researcher. Only a handful of published work concentrates on interview data, and these tend to have
small sample sizes, and/or used in combination with online material described above.45
41 Akiko Orita, ‘Death in the Second Person in the Digital Age’ (2023).
42 Andrea Bovero and others, ‘Death and Dying on the Social Network: An Italian Survey’ (2020) 16 Journal of Social
Work in End-of-Life & Palliative Care 266.
43 T Morse and M Birnhack, ‘Digital Remains: The Users’ Perspectives’ in Maggi Savin-Baden and Victoria Mason-
Robbie (eds), Digital Afterlife (Routledge 2020).
44 Jed Brubaker, Lynn Dombrowski, Anita M. Gilbert, Nafiri Kusumakaulika and Gillian Hayes, ‘Stewarding a Legacy:
Responsibilities and Relationships in the Management of Post-mortem Data’, (Proceedings of the SIGCHI
Conference on Human Factors in Computing Systems, Toronto 26 April – 6 May 2014)
<https://dl.acm.org/doi/10.1145/2556288.2557059>; Jed Brubaker and Vanessa Callison-Burch, ‘Legacy Contact:
Designing and Implementing Post-mortem Stewardship at Facebook’ (Proceedings of the 2016 CHI Conference on
Human Factors in Computing Systems, San Jose, CA, 7-12 May 2016)
https://dl.acm.org/doi/10.1145/2858036.2858254; Tal Morse & Michael Birnhack, ‘The Continuity Principle of
Digital Remains’, New Media & Society 14614448221133536 (2022), https://doi.org/10.1177/14614448221133535 (last
visited Mar 25, 2024).
45 Brubaker, Hayes and Dourish (n 28); Jed R Brubaker and others, ‘Stewarding a Legacy: Responsibilities and
Relationships in the Management of Post-Mortem Data’, Proceedings of the SIGCHI Conference on Human Factors
in Computing Systems (ACM 2014) <http://doi.acm.org/10.1145/2556288.2557059> (last visited Mar 25, 2024).;
Jed R Brubaker and Vanessa Callison-Burch, ‘Legacy Contact: Designing and Implementing Post-Mortem
Stewardship at Facebook’, Proceedings of the 2016 CHI Conference on Human Factors in Computing Systems (ACM
2016) <http://doi.acm.org/10.1145/2858036.2858254> (last visited Mar 25, 2024).; Jo Bell, Louis Bailey and David
Kennedy, ‘“We Do It to Keep Him Alive”: Bereaved Individuals’ Experiences of Online Suicide Memorials and
Continuing Bonds’ (2015) 20 Mortality 375 <https://doi.org/10.1080/13576275.2015.1083693> (last visited Mar
25, 2024).; Natalie Pennington, ‘You Don’t De-Friend the Dead: An Analysis of Grief Communication by College
Students Through Facebook Profiles’ (2013) 37 Death Studies 617
<http://dx.doi.org/10.1080/07481187.2012.673536> (last visited Mar 25, 2024)..
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Posthumous Privacy Paradox
Morse and Birnhack’s recent study represents further exemplary quantitative insights, this time focusing on
the approaches and behaviours concerned with managing digital remains by Israeli Internet users.46 It is
the only investigation to directly explore post-mortem privacy issues, focusing on the persistence of the
privacy paradox after death, i.e., the gap between “people’s stated interest in their online privacy and
their actual behaviour”.47 The authors surveyed a representative sample of Israeli population to better
understand perceptions, preferences and actions taken in considering the protection of user’s digital
remains. Findings suggest the existence of a posthumous privacy paradox, where users either wish to deny
all access to their digital remains but, in practice, enable partial of full informal access, or they wish to
allow only partial access of this content, but instead enable full access.
The research further reveals that the posthumous privacy paradox is a complex and nuanced
phenomenon. Significantly, findings demonstrated the prevalence of an inverted posthumous privacy
paradox. Here, the mismatch between preferences and behaviour is characterised by users who might
wish to share their personal data posthumously with loved ones, however these wishes are likely to be
frustrated as a result of “current policies of online platforms, absence of legal framework and [the user’s]
own uninformed inaction”.48 The authors point to a number of other interesting (though not unsurprising)
features of the management of digital remains, namely that informational deficiencies abound. Even for
users who are aware of data processing systems, there may be a “lack of technological know-how, as to
how to manage one’s personal data that would become digital remains”.49 Where online tools do exist to
manage digital remains, the authors suggest that user’s reluctance to activate these may also be due to
an unwillingness to contemplate their own death. Ultimately, users need to be empowered in order to
make decisions about their digital remains, and as such “a top-down, one-size-fits-all law will frustrate the
wishes of large segments of the user population”.50
Not only are the empirical findings of this study of interest, it also provides a comprehensive
methodological template for a baseline quantitative UK study on post- mortem privacy online (or other
common law jurisdictions were privacy lapses upon death), and then a useful comparator when such a
study takes place. It offers potential pathways for other future research, where the focus of study might
include user’s perceptions rather than social interaction between people.
A recent study provides initial evidence for the posthumous privacy paradox in the UK. Using both
quantitative (survey of 108 participants) and qualitative methods (interview with 12 participants), the
46 T Morse and M Birnhack, ‘The Posthumous Privacy Paradox: Privacy Preferences and Behavior Regarding Digital
Remains’ [2022] New Media & Society 1343 <https://doi.org/10.1177/1461444820974955> (last visited Mar 25,
2024)..
47 The term ‘privacy paradox’ was first defined in Patricia A Norberg, Daniel R. Horne and David R. Horne, ‘The
Privacy Paradox: Personal Information Disclosure Intentions versus Behaviors’ (2007) 41(1) Journal of Consumer
Affairs 100. However, the gap between people’s stated interest of their online privacy and their actual behaviour
was first identified by Sarah Spiekermann, Jens Grossklags and Bettina Berendt, ‘E- Privacy in 2nd Generation E-
Commerce: Privacy Preferences versus Actual Behavior’ (Proceedings of the 3rd ACM Conference on Electronic
Commerce, Tampa Bay, Florida, October 2001) < https://dl.acm.org/doi/10.1145/501158.501163>.
48 Morse and Birnhack (n 46) 1359.
49 Ibid, 16.
50 Ibid, 19.
Electronic copy available at: https://ssrn.com/abstract=4813651
Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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authors identified a mismatch between peoples’ intent of allowing access to digital remains and their
actions to guarantee this. The research argues that the main factors affecting digital estate planning are
ambiguous accessor motivation, failure to communicate intent, changing temporal context and latent
data values. The authors, working in the area of human-computer interaction, offer design
recommendations for the integration of digital legacy planning functionality within Personal Information
Management (PIM) and Group Information Management (GIM) systems. 51 While we acknowledge the
importance of this exploratory study in a different discipline using specific methods, we submit that our
research, given the sample size, methods and questions explored, offers a first comprehensive
understanding of postmortem privacy, its paradox and digital legacy management in the UK.
III.
METHODOLOGY
We conducted an online survey among a representative sample of adult UK population in May 2023. We
obtained the ethical approval for this human subject research from Author A’s Institutional Review Board
(IRB). All participants signed an informed consent form, and were assured that their answers will not be
used for any other purpose. A unified questionnaire was distributed via a computer-assisted web
interviewing (CAWI) system to registered panellists with Opinium, an international market research
agency. Participants were awarded points for their participation by Opinium, which can be exchanged for
vouchers or cash value. All data is collected in an anonymous format from respondents.
The invite to participate in the study was circulated to 2,000 panellists. 1766 (82%) opted in and completed
the survey. Quotas of gender, age and geographical location were set in advance and controlled during
data collection to ensure a representative sampling of UK adult population. Of the participants, 51.3%
identified as women, 49.3% as men and 0.3 as other. Participants’ age ranged from 18 to 90, and average
age was 51 (S.D. 16.80).
A first set of questions addressed participants’ online practices and activities on six main types of digital
platforms: (1) personal email accounts; (2) workplace email account; (3) Social Network Sites (SNS); (4)
online cloud storage services; (5) dating sites; and crypto wallets. We sought information regarding the
frequency of use for these services. These parameters indicate the intensity of use and hence the
anticipated scope of the digital remains. A second set of questions focused on the participants’ behaviour
with regards to managing access to digital remains. We asked the participants about informal access to
their online accounts, about their awareness of current online tools for managing access to digital
remains, and whether they have activated these. The next set of questions explored the participants’
preferences regarding access to digital remains. We asked about participants’ wishes per each service –
to whom, if anyone, would they like to grant access to after they die. Lastly, we asked about participants’
view about privacy – in life and after death. Thirteen statements were presented, and the participants
were asked to rank the extent to which they agreed with each statement. The data was analysed using
software for statistical analysis (SPSS).
51 Jack Holt et al., ‘Post-Mortem Information Management: Exploring Contextual Factors in Appropriate Personal
Data Access after Death’, Human–Computer Interaction 1 (2024),
https://www.tandfonline.com/doi/full/10.1080/07370024.2023.2300792 (last visited Mar 25, 2024).
Electronic copy available at: https://ssrn.com/abstract=4813651
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IV.
FINDINGS
Access to Digital Remains
Currently, major IT corporations like Google, Facebook and Apple allow their customers to activate
designated tools for managing access to digital remains. These tools were launched in 2013 for Google, in
2015 for Facebook and in 2021 for Apple. However, as studies show, people are unaware of these options
and they seldom use them.52 Since the IT corporations are not willing to disclose any information about
the scope of activating these tools, and since there is no reliable data about the extent to which UK
residents use these tools, we introduced these tools in the survey and asked the respondents if they are
familiar with them (“Platforms like Facebook, Apple and Google have a service to regulate access …Had
you heard of such services before today?”).
Figure 1: awareness to online tools for managing access to digital remains ("Platforms like Facebook, Apple and Google have a
service to regulate access …Had you heard of such services before today?"). N=1766.
The survey reveals that awareness to these services lies beneath 30%. Only 28% of the respondents
confirmed that they are familiar with these services. The remainder of respondents replied either that
they have not heard about these services (62%) or that they do not know (4%) or do not recall (6%) if they
have heard about the services. Generation Z are more aware than other generations (42.7%).53 Awareness
decreases as age rises.
52 Carla Sofka and James Norris, ‘Digital Death Report’ (2021) <https://digitallegacyassociation.org/about/reports-
2/>; Morse and Birnhack (n 43).
53 Among other demographic characteristics, we used the respondents age to cross-break the data according to
popular generational categorisation, which is popular in the media and advertising and is inspired by the Strauss–
Howe generational theory. We classified the participants into generation categories according to the following
years of birth: Silent Generation (1928-1945); Baby-boomers (1946-1964); Generation X (1965-1980);
Millennials/Generation Y (1981-1996) and Generation Z (1997-2012). William Strauss & Neil Howe, Generations:
The history of America’s future, 1584 to 2069 (1991, New York, NY: Morrow); Damien Chaneya, Mourad Touzanib
and Karim Ben Slimane, “Marketing to the (new) generations: summary and perspectives” 25(3) (2017) Journal of
Strategic Marketing, 179–189http://dx.doi.org/10.1080/0965254X.2017.1291173. Please also refer to this article
for more details: https://en.wikipedia.org/wiki/Generation#Western_world
28%
62%
4% 6%
Yes
No
Don't know
Don't recall
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Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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Respondents that were aware of these tools (28% of respondents), were asked whether they have
activated these tools for Google, Facebook and Apple (“Have you set a Legacy Contact or activated the
Inactive Account Management service?”). We found that activation rates are low. 8% of the sample have
activated it for Facebook; 5% have activated it for Google; and 7% have activated it for Apple accounts.
These findings validate Holt et al.’s initial findings that suggest that people do very little to protect their
post mortem data.54
Figure 2: activation of tools for managing access to digital remains ("Have you set a Legacy Contact or activated the Inactive
Account Management service?"). N=1766.
These findings, which reflect the UK adult population, indicate a significant lack of utilization of these
tools. Moreover, these findings align with data collected in Israel in 2017, suggesting that awareness of
these options remains low despite the passage of time. This situation becomes even more concerning
when considering individuals’ desires and their limited capacity to fulfil them, as we will demonstrate later
on.
We presented to the participants a list of 13 statements about privacy and access to digital remains, and
asked them to rank to what extent they agree or disagree with these statements (“To what extent do you
agree or disagree with the following statements?”).
Table 1: perceptions of privacy and digital remains. N=1766
To what extent do you agree with the following
statements?
Strongly
agree
Somewhat
agree
Neither
agree
nor
disagree
Somewhat
disagree
Strongly
disagree
Don’t
know
Privacy is an aspect of human dignity
48%
32% 12%
3%
2% 3%
I have nothing to hide on my social media platforms
50%
27% 14%
5%
2% 3%
I want to decide who, if at all, will have access to my digital remains
46%
30% 16%
2%
2% 4%
I care what my family and friends know about my life
29%
36% 22%
6%
5% 2%
I want my family to have access to all my digital remains
28%
30% 20%
9%
7% 5%
People today share everything online so it seems they don’t care about
privacy
19%
35% 23%
12%
8% 3%
54 Holt et.al. (n 51).
8%
5%
7%
20%
23%
21%
72%
72%
72%
0%
20%
40%
60%
80%
100%
Yes, for Facebook
Yes, for Google
services
Yes, for Apple
Unaware of service
Did not activate
Activated
Electronic copy available at: https://ssrn.com/abstract=4813651
Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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The content one leaves online after death helps us know the deceased so
it’s important others will have access to this content.
20%
29% 29%
9%
8% 6%
I want to have access to my family’s digital remains
19%
28% 31%
6%
8% 7%
I don’t mind disclosing information to state authorities
14%
25% 28%
15% 14% 4%
After someone dies, all their online activity should be deleted
automatically
19%
20% 23%
18% 15% 6%
I don’t mind disclosing information to tech companies (Google, Facebook,
Apple etc.)
10%
21% 27%
20% 18% 4%
Once people die, they are no longer entitled to their privacy
7%
10% 16%
20% 43% 4%
Privacy is overrated
4%
11% 19%
23% 41% 2%
Table 1 indicates that people value privacy as well as post-mortem privacy. Privacy matters to them, and
they want to control what information they disclose and with whom. Agreement rates with statements
like “Privacy is an aspect of human dignity” and “I want to decide who, if at all, will have access to my
digital remains” are very high, and on the contrary – agreement rates with the statement “Privacy is
overrated” is the lowest. As for managing access to digital remains, the findings show that overwhelmingly
people care about what personal information they will leave behind, and they tend to disapprove
automatic deletion of personal information upon death. This finding differs from findings on similar
questions in Italy55 and Japan56 where a vast majority of respondents expressed wishes to delete all their
online accounts automatically. While UK respondents do not wish for an automatic deletion, they do want
to exercise control and to choose who will access their digital remains. Other findings that we present
later bolster this approach.
We further asked the participants “Of the following platforms you use, to whom, if anyone, would you
like to grant access to the platform after you die?”.57 Figure 3 displays the findings.
55 Bovero and others (n 42).
56 Nakagawa and Orita (n 40).
57 The question mentioned also dating sites and crypto wallets, but since the use of these platforms is relatively
low, we present here only the findings pertaining to the above platforms.
Electronic copy available at: https://ssrn.com/abstract=4813651
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Figure 3: Post-mortem access. “Of the following platforms you use, to whom, if anyone, would you like to grant access to the
platform after you die?” N=1766.
When it comes to personal accounts, leaving access to spouse was the most frequent answer. As expected,
for workplace email accounts, the most common answer was to leave access to a colleague or to the
employer.
Participants who replied that they would like to grant access to someone (i.e., they did not reply “no one”
in the pervious question), were additionally asked, “Upon death, how much access would you like
someone to have to your accounts on the following platforms?”. Figure 4 displays the findings.
Figure 4: Extent of post-mortem access. “Upon death, how much access would you like someone to have to your accounts on the
following platforms?”
The findings in Figures 3 and 4 show that four of every five respondents wish to grant someone access to
their digital remains on the various platforms. Only 19%-24% of the respondents replied they wish to grant
access to “no one”, i.e., deny total access to their accounts. Of those who wish to leave access to their
digital remains, approximately seven out of every ten respondents replied they wish to leave access to all
48%
21%
43%
44%
11%
7%
9%
12%
25%
7%
23%
23%
10%
7%
10%
11%
5%
5%
5%
5%
5%
5%
6%
7%
1%
42%
1%
2%
19%
22%
24%
19%
3%
2%
3%
3%
0%
10%
20%
30%
40%
50%
60%
Personal email account
Workplace email account
Digital Social network
Cloud storage
Spouse
My parents
My children
Siblings
Other family member
Friends
Colleague or employer
No one
Prefer not to say
69%
65%
69%
69%
70%
16%
18%
16%
19%
15%
4%
8%
5%
4%
4%
10%
7%
8%
6%
9%
2%
2%
2%
2%
2%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Personal email account
Workplace email account
Digital Social network
Cloud storage
Personal devices
Allow access to all content
Allow access to some of the content
Deny access to all of the content
Don’t know
Prefer not to say
Electronic copy available at: https://ssrn.com/abstract=4813651
Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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the content they keep on the various platforms. These findings suggest that most people are happy to
leave access to their digital remains once or if they choose to whom the content will be accessible.
These findings, however, are generation-sensitive – approximately 50% of Generation Z wish to grant full
access to their email, SNS and storage accounts, while these rates exceed 80% when it comes to older
generations.
The Posthumous Privacy Paradox
The privacy paradox deals with the gap between peoples’ perceptions of privacy and their behaviour to
protect their privacy. The above questions covered perceptions and wishes about post-mortem privacy.
The privacy paradox manifests itself when there is a mismatch between perceptions and behaviour, so
the next question addresses behaviour with respect to informal access to the accounts, which is the
condition of access upon death.
We asked the respondents “In case you are unable to access you online accounts, who, other than you,
knows your passwords and/or has access to your accounts?”.58 The survey found that 35% of the
respondents (approximately one of every three) leaves informal access to their personal email accounts;
28% of the respondents leave access to their SNS accounts; and 26% of the respondents (approximately
one of every four respondents) leave access to their Could storage accounts.59 Informal access is higher
among Generation X (75%-80%) compared to other generations. The findings suggest that upon death,
most accounts will be blocked to friends and families of the users. In case these users wish to grant post-
mortem access, this wish will not be fulfilled.
58 In addition to the above, we asked this about workplace email, dating sites and crypto wallets. As mentioned in
footnote 57, rates of usage re dating sites and crypto wallets are low, and the assumption is that someone has access
to workplace email, regardless of the answers we received. Therefore, we present only findings pertaining to the
above platforms.
59 In Israel, in 2017, there were approximately 50% of informal access to these services.
Electronic copy available at: https://ssrn.com/abstract=4813651
Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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Figure 5: Informal access. “In case you are unable to access you online accounts, who, other than you, knows your passwords
and/or has access to your accounts?”. N=1766.
In order to account for the posthumous privacy paradox, we juxtaposed the wish to grant access to digital
remains and informal access to the users’ accounts. For this analysis, we needed create two summative
variables that will capture aggregately the wish to grant access and informal access to digital remains.
Respondents who replied that they strongly or somewhat agree with the statement “I want my family to
have access to all my digital remains” were classified as wanting to leave access to all digital remains.
Respondents who replied that they strongly or somewhat disagree with the above statement were
classified as wanting to deny access to all digital remains. And those who replied neither agree nor
disagree were classified as “mixed approach”. As for the informal access, respondents who replied that
they leave informal access to all three platforms – personal emails, SNS and Cloud storage – were classified
as leaving informal access to all main platforms; respondents who replied that only they have access to
all three platforms were classified as denying informal access to all main platforms; respondents who
replied that they have informal access to some of the platforms but not to all, were classified accordingly.
A juxtaposition of the two variables reveals that 58% of the respondents wish to grant access to all their
digital remains, while only 18% will leave full access to their digital remains all mains platforms we
examined; 16% of the respondents wish to deny access to all their digital remains, while 59% will leave
not informal access to the main platforms; and the remainders, 26% and 23%, respectively, were
65%
72%
74%
35%
28%
26%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Personal Email
SNS
Cloud
Only I have access
Informal access
Electronic copy available at: https://ssrn.com/abstract=4813651
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interested in applying a selective approach and controlling the content or platforms that will be accessible
or in accessible in life and after death (mixed approach).
Figures 6 and 7 show the juxtaposition of the two variables.
We then cross tabulated the two variables:
Table 2: The posthumous privacy paradox - crosstabulation of Access to Digital Remains and Informal Access
Access to Digital Remains
Total
Grant access to
ALL digital
remains
Mixed
approach
Deny access to
ALL digital
remains
Informal
Access
No informal access to
main platforms
30.1%
17.2%
11.8%
59.0%
Informal access to
some main platforms
15.3%
5.2%
2.4%
22.9%
Informal access to
ALL MAIN platforms
12.6%
3.4%
2.1%
18.0%
Total
58.0%
25.8%
16.2%
100.0%
58%
26%
16%
Grant access to ALL digital remains
Mixed approach
Deny access to ALL digital remains
59%
23%
18%
No informal access to main platforms
Informal access to some main platforms
Informal access to ALL MAIN platforms
Figure 6: Wish to grant access to digital remains.
Figure 7: Informal access to digital remains.
Electronic copy available at: https://ssrn.com/abstract=4813651
Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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A summary the findings of the posthumous privacy paradox is as follows: nearly two-thirds of the sample
(62.6%) are expected to experience the inverted posthumous privacy paradox. These people have wishes
to leave access to their online accounts, however, due to lack of explicit instructions, their accounts are
expected to be inaccessible once they die. Another approximately 8% of the people will experience the
“classic” privacy paradox. These people care about their privacy and wish to exert control over their online
accounts, but their current behaviour suggests that upon death their accounts will be accessible to others,
despite their implicit wishes. One of every 4 people (24.4%) will experience no paradox because they have
arranged for their accounts to be accessible or inaccessible align with their wish.
Figure 8: The posthumous privacy paradox – frequencies
Adoption of Legal Solutions?
The law in some countries allows users to administer access to digital remains by leaving instructions in a
will or by setting a social media will. An example is France under The Digital Republic Act 2016.60 The UK
law is silent on the topic and solicitors choose to advise clients to include designations about their digital
remains despite this issue. We asked the participants about this option to examine to what extent it can
serve as an alternative channel for managing access to digital remains.
We first asked the participants “have you signed a will?”. We found that 52% of the sample have not
signed a will and less than half of the sample have signed a will (44% of the sample), two-thirds of them
(30% of the sample) have done so in a law office. The rates of those who signed a will, unsurprisingly,
60 LOI n° 2016-1321 du 7 octobre 2016 pour une République numérique
24.4%
7.8%
62.6%
5.2%
No paradox
Posthumous privacy paradox
Inverted posthumous privacy paradox
Unclear
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increase as age increases: 18-34: 27%; 35-54: 31%; 55+: 67%. 4% of the sample preferred not to answer
this question.
Figure 9: Wills (“Have you signed a will?”)
We further asked, “Does your will cover what should happen to your social media accounts after you die?”
Table 3: Wills and social media
Does your will cover what should
happen to your social media
accounts after you die?
Entire sample
Amongst those who signed a
will
Did not sign a will
56%
-
Yes
7%
15%
No
34%
77%
Don’t remember
3%
7%
Prefer not to say
0%
1%
Table 3 shows that the vast majority of those who signed a will, did not include instructions about their
social media accounts. They either did not think this matter needs to be settled, or were unaware of the
possibility to arrange that.
Participants that replied that their will covers social media accounts (7% of the sample) were asked, “You
mentioned your will covers what should happen to your social media accounts. How did you make this
will?” (Table 4). Here we found that the most common method is to ask a solicitor (41% amongst those
who mentioned social media will, which are 3% of the sample). The second most common method is by
setting up a trust (29%; 2% of the sample), and the third most common method is by using an online
service (26%; 2% of the sample). These findings indicate that solicitors are the common facilitators for
signing social media wills. However, as table 3 and 4 show, the rates of those who have pursued these
options among the entire population are very low (93% do not have a social media will). These findings
30%
14%
52%
4%
Yes, I have made a will in a law office
Yes, I have used an online service to make a will
No, I haven’t made a will
Prefer not to answer
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are significant and in line with anecdotal evidence and some recent research that indicated an identical
figure of 44% of UK adults who have made a will.61
Table 4: who facilitated signing a social media will? (“You mentioned your will covers what should happen to your social media
accounts. How did you make this will?”)
You mentioned your will covers
what should happen to your
social media accounts. How did
you make this will?
Entire sample
Amongst those who mentioned
social media will
No social media will
93%
-
With a solicitor
3%
41%
I have set up a trust
2%
29%
I used an online service
2%
26%
Don't remember
0%
2%
Prefer not to answer
0%
2%
V.
DISCUSSION
This study is the first to address UK residents’ perceptions and wishes with regard to access to digital
remains. As approaches to privacy vary across countries; as attitudes towards death are culturally
dependent; and as laws and regulations are often local rather than global, it is important to capture UK
population’s perceptions on these matters, rather than infer them. So far, there have mostly been
anecdotal evidence of these perceptions, so our study addresses the gap and offers evidence for policy
and regulatory interventions.
This study shows that UK residents value privacy. Most of them believe it is inherent to human dignity,
and they tend to disagree with an assertion that is commonly expressed according to which privacy is
overrated. They care about what other people know about their life, and they are less likely to consent to
disclose personal data and information to state authorities.
As for post-mortem privacy, UK residents tend to disagree with a statement that asserts that privacy ends
with death. This is very significant. This approach also applies to digital remains. Most people want to
exercise control over who gets access to their orphaned online accounts and have explicit wish who should
have access to each account they hold. At the same time, most people replied that they have nothing to
hide on their social media platforms, hence as far as they are concerned, exercising control manifests itself
by a wish to grant access to the accounts, posthumously. This finding is in line with attitudes that were
expressed in the study, which perceive digital remains as a means to know the dead and a form of
commemoration. Accordingly, people wish to have access to their love ones’ digital remains.
However, the pervasive wish to leave access to digital remains is confronted with the lack of direct
instructions and explicit actions that will facilitate that. Only a few of UK residents have activated the
digital solutions, like Legacy Contact and Inactive Account Management. This finding is not surprising, and
it reveals the insufficient attempts the IT corporations make to self-regulate access to digital remains and
61 The National Will Register, “The National Wills Report”, April 2023,
https://www.nationalwillregister.co.uk/news/two-fifths-of-uk-adults-not-discussed-instructions-after-death-new-
wills-report-finds/
Electronic copy available at: https://ssrn.com/abstract=4813651
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raise user awareness of their existing in-service solutions. When juxtaposed with the relatively vast wish
grant access to digital remains, the study reveals that 2 of every 3 UK residents will experience the inverted
posthumous privacy paradox, i.e. the wish to leave access to digital remains will be frustrated by the lack
of adequate instructions and suitable actions to allow such access.
Importantly, this study’s findings indicate that there is a clear and urgent need for change and reform in
the area. The findings complement earlier research in this area and, particularly, Harbinja, McVey and
Edwards’ qualitative study and their findings that result from surveying stakeholders in the UK, most
notably, the legal professionals.62 The results are also in line Morse and Birnhack’s Israeli study on user
perceptions and post-mortem privacy paradox.63 We are now able to refer to comprehensive empirical
evidence of both user perceptions and expectations, which are not met by the law and practice, and
challenges in understanding and practice within the legal profession caused by the lack of clear legal
provisions, platform behaviours and the lack of awareness. However, as this is an empirical study with its
specific findings and data, it is not in the scope of this paper to detail the necessary change or law reform.
We will, therefore, explore main directions the reform could take, using our key findings and earlier
research as a starting point.
VI.
CONCLUSIONS AND RECOMMENDATIONS
Besides possible design solutions,64 some of the law and policy reform proposals have been elucidated in
the literature we cite throughout the article. The most obvious law reform candidate is data protection.
In her body of research, Harbinja has been an advocate of an explicit legal recognition of informational
postmortem privacy in UK law.65 She proposed the revision of the definition of personal data in the Data
Protection Act 2018 that would include the deletion of the word ‘living’. This would be a first condition of
enabling the extension of certain data protection safeguards and rights postmortem, akin to a number of
EU member states.66 Our findings on users’ attitudes towards postmortem privacy support this
proposition and indicate that users would welcome such a reform. Findings on the attitudes towards
deletion or allowing access to accounts, for example, support the postmortem extension of data subject
rights in some form, e.g., the extension of the right to delete post-mortem as specified by the deceased
or by default. These solutions need to be balanced carefully, however, so that they do not envisage default
heirs access or interference with an expressly states wish of a deceased regarding the faith of their
personal data post-mortem.
Further, there needs to be a form of recognition of online tools for the disposition of certain digital
remains, social media accounts in particular. The law could recognise legacy contacts and similar services
as a valid form of disposition of social media content and personal data. This would require reforming the
law of wills, which has been ongoing for a number of years now. In September 2023, six years after its
initial consultation on reforming the Wills Act 1837,67 the Law Commission has opened a supplementary
consultation calling for views on the introduction of digital will, inter alia.68 The consultation period closed
62 n. 39.
63 n. 46.
64Holt et.al. (n 51).
65 Harbinja (n 2) and (n 3).
66 See Erdos (n 3) and Harbinja (n 2).
67 Law Commission, “Making a Will”, Consultation Paper No 231.
68 Law Commission, “Making a Will”, Supplementary consultation paper No 260.
Electronic copy available at: https://ssrn.com/abstract=4813651
Digital Remains and Post-mortem Privacy in the UK – BILETA 2024 Conference paper
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in December 2023 and the Commission aims to publish their final Report and a draft Bill enacting their
recommendations in early 2025. Expectedly, the consultation paper does not mention digital solutions
other than a full digital will. To one of the author’s questions of the reason for excluding digital legacy
from the reform, the Commission responded that they were considering succession of digital assets as a
potential stand-alone project for the 14th Programme of Law Reform.69 This implies further significant
delay of the reform beyond the year of 2026, notwithstanding that the Bill considering the law of wills
would be introduced in early 2025.
It is important to note that the UK law has recently changed in a very specific and related area. The Online
Safety Bill 2023, adopted in the House of Lord in September 2023, introduced a provision that mandates
service providers to “make it clear in the terms of service what their policy is about dealing with requests
from parents of a deceased child for information about the child’s use of the service.”70 This is a very
limited use case and it adds to the uncertainty in this area and the piecemeal approach the UK has had so
far.
A more comprehensive law reform would include the conceptualisation and access to digital remains
more generally. It could consider some of the solutions offered in the US Revised Uniform Fiduciary Access
to Digital Assets Act 2015, such as the recognition of online tools for the disposition of digital assets and
remains and the hierarchy between user directives, provisions of their will and platform terms of service.71
The comprehensive law reform is, unfortunately, not forthcoming in the UK. At the EU level, the European
Law Institute has just launched a project with a similar purpose and scope. The project aims to draft a
model law for the EU and members states in order to tackle questions of the conceptualisation of digital
remains, access, entitlements, data protection issues, jurisdiction.72 The model rules, if adopted by the
EU, would address the key concerns in this area and offer legal certainty and clarity for individuals residing
in the EU.
Detailed, balanced policy and law reform proposals in the UK succession, privacy and data protection law
will be subject of our future research and policy work in this area. The empirical findings in this paper will
hopefully serve as strong evidence base for the doctrinal and policy proposals. Now that we are more
aware of what users want, we argue that their perceptions and attitudes must be considered more
carefully in designing any policy and regulatory solutions.
69 Email communication with the Commission following the consultation response submission, on file with the
author.
70 C. 76, Online Safety Bill, as amended on report, HL Bill 164.
71 S. 4, Uniform Law Commission, Revised Uniform Fiduciary Access to Digital Assets Act 2015.
72 European Law Institute, “ELI Model Rules on Succession of Digital Assets, Data and other Digital Remains”,
September 2023, https://www.europeanlawinstitute.eu/projects-publications/current-projects/current-
projects/succession-of-digital-assets-data-and-other-digital-remains/
Electronic copy available at: https://ssrn.com/abstract=4813651