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Digital death during the times of social media: an instrumental and no longer eternal digital death

Surely our grandparents would never have imagined that the subject of digital death would exist today, and perhaps even the generation of the 21st century does not actually realize the important impact that this superdimensional, immaterial and borderless world has on concept of the disappearance.

In short, with the physiological death of our body, life no longer ends as it once could. The post-modern life has to deal with eternal data, perhaps simply blocked by a password.

Even after death, life and all the moments related to it are always available indefinitely.

The pain, the fear, the sense of emptiness, the anxieties are shared on social networks, for example by sharing a bereavement, or with a selfie taken at a funeral, although it is a macabre and extremely superficial behavior. The way of commemorating the dead has, in many contexts, changed.

But if we look back and observe with an anthropological key the customs of cultures other than ours, or simply of our past, we realize that taking pictures with the dead is not such a ‘modern’ phenomenon. In fact, in the Victorian era, post mortem photos were a very popular way to remember the deceased person in a ‘closer’ way, which makes this custom full of charm and macabre mystery.

The photos of the time I'm talking about collect dark faces, without smiles; expressions are often thoughtful. The impetus for the spread of this habit was given by the parents' desire to have a ‘souvenir’ photograph of their children: in fact, in many images the latter were immortalized together with family members, siblings, parents, or even the whole family reunited.

Returning to today, the nostalgia of deceased loved ones, justified by the simple need to feel them still close, leads us to assume attitudes similar to those I have mentioned. And this craving, although not directly manifested as in the past, inevitably pervades us, due to the basic fact that our data, our photos, our online activities survive us without our will.

Davide Sisto, philosopher expert in thanatology

‘Death becomes social’

Davide Sisto is a young philosopher expert in thanatology, a discipline branch of forensic medicine that deals with physical death and its consequences on the human body, which deals with the relationship between the disappearance of a person and his social networks in a profound and innovative way.

‘Death no longer exists. At the same time, however, we live constantly surrounded by the dead’.

Relegated away from our everyday life, medicalized, expelled from our lives, the experience of dying today lives in a paradoxical situation when the images and words of those who have existed come back and suddenly burst from the screens of our phones.

‘We die, but we continue to exist in the ineliminable presence of our past online life.

The omnipresence of death on the web puts before our eyes that spectacularization of dying that is the first consequence of its social and cultural removal. We are witnessing a real international phenomenon of Digital Death related to the continuous and increasingly sophisticated development of the Internet and artificial intelligences. In fact, digital culture increases the communicative processes of recording and repetition, making the dead accessible to anyone who has a connection at any moment of the day.

There have been several attempts at evolution: an example are griefbots (from grief, mourning and bot, program). Seen for the first time in the episode of the science fiction series Black Mirror Be Right Back, in which a woman continues to converse with her deceased husband and reconstructed through artificial intelligence, griefbots have become an experimental and personalized reality.

Sisto's philosophy can be summarized with a simple question that each of us, a subject operating in these two interconnected worlds, should ask himself: ‘what do I want to leave to others after my death?’, so that this question acts as a driving force for a reflection on the responsible use of the web.

Giovanni Ziccardi, professor of legal informatics at the State University of Milan

‘The digital book of the dead’

Following what has been discussed, what about the right to be forgotten and what will happen to online data? To offer answers was Professor Giovanni Ziccardi, arguing about what the law says about it.

There are three aspects that come into play: the right, the will of the person when they are alive and the ways in which the platforms, "inside" the social networks, face the problem. The law is highly developed in US legal systems, where over thirty countries already have a law governing digital legacies, and very backward in Europe, where there are still no ad hoc initiatives.

Large technology companies aim to anticipate the will of the average user, giving their customers the possibility of appointing digital heirs through ‘fake wills’ (which, in reality, are simple private deeds), or by crystallizing a profile by making it become commemorative and unchangeable (in short: a plaque, or digital temple) or, again, by keeping all the tweets or messages exchanged in a sort of posthumous digital memory accessible to those who prove they are entitled to it.

It is not easy, even in the digital environment, to reconcile the needs of all the heirs, and then further questions arise that the law is not always able to resolve.

Facebook, for example, since 2011 has explicitly provided for the hypotheses of the ‘commemorative profile’ and the ‘heir contact’ in order to allow only the closest friends of the deceased, or a person of absolute trust, to continue to manage the his profile. In this sense, Twitter has made the choice to allow the deletion of a user's information after six months of inactivity.

Google, for its part, allows each user to voluntarily set their account as ‘inactive’ - a sort of ‘apparent digital death’ - for a maximum period of eighteen months.

The technological solutions adopted by large operators to manage these aspects of death and the digital legacy are often very different from each other and, above all, are being constantly updated.

What are the countries in the world with the most advanced legislation on this matter?

The United States of America was the first to try to regulate the issues I mentioned above by law and to take an interest in state regulatory reforms that would regulate this delicate aspect. To date, as already mentioned, there are over thirty countries that have a specific rule for the regulation of digital inheritance or that have, and are discussing, a bill in the pipeline.

These US disciplines are all alike: they focus on the problem of how the accounts of the deceased can be accessed, and support the need for rules since the online environment would have much more restrictive constraints than the management of traditional assets.

In the United States of America, in particular, the large online service providers (which, as is well known, have a worldwide monopoly in both e-mail and social network and cloud services) appeal, in these cases, to the Federal Privacy Policy. It is well before the spread of digital assets (and also of social networks), but it guarantees a high level of protection to the account or service owner and is, therefore, capable of embarrassing heirs seeking to obtain digital information relating to the deceased.

This privacy policy argues that providers cannot release data unless the account holder has explicitly given permission or, if not, unless a court order intervenes.

US law thus provides for two levels of protection which, in a certain sense, ‘lock down’ the accounts, profiles and spaces on the cloud of deceased persons: a first discipline aimed at providers, which requires them as a commercial rule not to disclose to third parties customer data, and a second discipline more focused on privacy that focuses on the user's post mortem right not to see the data concerning him/her disseminated.

Ultimately, there is an attempt almost everywhere to balance the heirs' needs to access accounts with any privacy needs, or manifestations of will to the contrary of the deceased.

At the same time, an attempt is made to facilitate what is a ‘first collection of information’ for organizational purposes of the succession, but careful control is required when the contents are disseminated.

It will certainly not be a battle to be fought against technology but with technology, although today the processing of data takes place more to profile the user, and to profit from his actions, than to protect him. A new focus on oblivion in the digital age will probably also require a radical change in the economic setting of the current information society, aimed only at obtaining maximum profit.

A process, the latter, to say the least complex.

For some years now the National Council of Notaries has also been dealing with this issue in Italy, which has launched projects with both Microsoft and Google for the creation of a ‘protocol’ that allows digital heirs to ‘interact with network operators’. In this regard, a decalogue has been drawn up precisely to allow us to extricate ourselves in this articulated matter, also given the legislative gap in our country.

First of all, it is advisable to entrust someone with the login credentials so that, following the death of the holder of that account and the opening of the succession, social profiles can be managed (if the person has any); while as regards the access data of the online accounts, being part of the bank accounts, it will be necessary to draw up a will that must be read by the notary.

Translated by Veronica Giustiniani

Sources:

Davide Sisto, La morte si fa social, Bollati Boringhieri editore, 2018

Giovanni Ziccardi, Il libro digitale dei morti, Utet, 2017


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  • L'Autore

    Elena Pavan

    Elena Pavan è una studentessa italo-francese di giurisprudenza presso l’Università Cattolica del Sacro Cuore di Milano. I suoi interessi vertono soprattutto intorno alla Proprietà Intellettuale, il Diritto d’Autore nel campo della moda e dell’arte, e il diritto Commerciale e Societario. Ha completato il suo percorso educativo con un Corso di Alta Formazione in Fashion Law presso l’Alta Scuola Federico Stella. Ha lavorato a Bordeaux per una società immobiliare, percorso lavorativo che l’ha portata ad integrare la CCI France-Italie a Milano. È membro di Elsa Italy, un’associazione di studenti di giurisprudenza, e membro dell’Istituto Francese a Milano. Ha svolto attività di volontariato presso l’Humanitas Hospital di Milano, l’ONU online e il Fondo Ambiente Italiano. Attualmente è consulente legale di Mondo Internazionale (Responsabile Regolamentazione Interna ed Internazionale), un’associazione senza scopo di lucro con il focus di valorizzare il capitale umano dei giovani, e consulente per Taras Consulting, società che si occupa di internazionalizzazione d’impresa.Collabora conIus in Itinere per le aree “Fashion Law” ed “IP & IT”.

    Elena Pavan is an Italian-French law student currently enrolled at the Università Cattolica del Sacro Cuore at Milan (the Sacred Heart Catholic University at Milan). She has a particular interest in private property rights pertaining to copyright, intellectual property, Art/Fashion objects, and International Corporate & Commercial Law.Her work experience includes a legal consulting collaboration with a real estatedeveloping company located in France. She is an activist for CCI France-Italie, as well as a member of the Elsa Italy which is a European Association founded by law students. She is also a currently involved with the French Institute of Milan.Actually, she is a Consultant (legal) for Taras Consulting, Milan, and Legal Consultant for Mondo Internazionale (Internal and International Regulations Advisor).She is a part of the “Diritto e Società” team in Mondo Internazionale.Her philanthropic interests have encouraged her to volunteer at the Humanitas Hospital of Milan as well as becoming an active member of the FAI institute (a non-profit organization funded to protect and preserve cultural sites located on the Italian territory), and as an online volunteer for the UN.She is a collaborator for Ius in Itinere - IP & IT and Fashion Law area.Her future goals include becoming a business lawyer, with a specialization in the legal rights involving the art/fashion and corporate world as her interests revolve around art, fashion and commercial law.

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