POSTHUMOUS PRIVACY – LIFE OF PRIVACY AFTER DEATH

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        It is not about what one has to hide, it is about why should be one compelled to disclose. It might be nothing that I have kept in my house behind the closed door, but someone breaking into that empty house with a malign intention in itself is breaking of law and order. That act of not respecting the locked or shut door in itself is violation of my right. Why shouldn’t one break a locked door which is hiding nothing behind it? Because it is simple, the owner of that house doesn’t want anyone to.
“To be left alone is the most precious thing one can ask of the modern world” is rightly said by Anthony Burgess in one of his works. This idea “of being left alone” is what respecting privacy is. Every person wants some personal space in their life, because certainly no one wants to make their life an open book. In fact no one wants to share the inner most of their personal life. Hence, privacy till certain extent is every person’s need. For understanding Privacy in a better way it would be helpful if we differentiate Privacy from its brotherly terms- confidentiality and secrecy. Privacy is a state when a person’s want of being left alone is honoured and respected while if we talk about Confidentiality, it speaks about a situation when important information is kept the secret between two individuals until the person to whom the information belongs permits to disclose it. 

• Confidentiality, Secrecy and Privacy - the difference.

First two terms can be regulated by the law. Privacy needs to be dealt with more sensitivity. Something private need not be confidential or secret but still is required to honoured. There is a very thin line in between Privacy, Confidentiality and secrecy.
According to the U.S. classification of information system:-
"Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security.
"Confidential" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security. The difference can easily be observed by the use of word serious in the definition of ‘secret’. Therefore, it pertains to the information that needs to be more carefully handled than the confidential information, referring to important and significant information.
The very basic difference in between ‘Confidentiality’, ‘Secrecy’ and ‘Privacy’ is that the former are based on spread of information and limiting its knowledge, it can be documental or informational whereas Privacy is a very abstract concept. It can be acknowledged only by honouring it. However, for honouring something it is needed that we acknowledge it in the first place and that’s exactly what was done by the nine judge bench of the apex court recently.
Lot many ingredients have been added to the soup of Privacy right from its origin to kinds to security, however, one aspect was left untouched in all of the above. I will be getting way ahead of myself if I speak of Posthumous Privacy to people for whom right to Privacy in itself is not even few months old. Yes, mainly because ‘Right to Privacy’ has not been explicitly expressed in our country’s constitution this whole acute debate eventuated. And now that we know we do have ‘Right to Privacy’ as our fundamental right the question is what we do about it. How about starting from ‘Privacy’ itself?
“The meaning of the term privacy changes according to its legal context. In constitutional law, Privacy means the right to make certain fundamental decisions concerning deeply personal matters free from government coercion, intimidation, or regulation.”

• ‘Privacy’ around the world:

Taking a look around us, into the world, we will find that many developed nations have already acknowledged the existence of Right to Privacy as a humanitarian right. The right to privacy is alluded to in the Fourth Amendment to the US Constitution  which provides that:
"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."; the introduction of the Human Rights Act 1998 incorporated into English law the European Convention on Human Rights. Article 8.1 of the ECHR provided an explicit right to respect for a private life.   “Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Where, we also have countries like Canada coming up with a whole “Privacy Act”. Over 150 national constitutions mention the ‘Right to Privacy’ . This particular Act in Canada as ‘Privacy Act’ sets out rules for how institutions of the federal government must deal with personal information of individuals.   
In India with the recent judgment that overruled cases like Kharak Singh and M. P. Sharma, Privacy as a fundamental right has come into existence and is considered as intrinsic to Right to life under art.21 of the Indian Constitution. Such as, in the definition above, “Privacy is just not the state where one likes not being disturbed or left alone” but it walks an extra mile where law becomes protection, where it is just not limited to ‘Privacy’ but ‘Dignity’ is attached as an invisible cote. ‘Privacy’ taken as a legal term is verily complex and has a lot wider scope. Hence, even when this nine judge bench came up with a landmark judgment it burst many legal bubbles along with Privacy. Right to abortion, sexual orientation, Aadhar, etc. were highlighted but we all failed to notice what was birthed in the shadow of these big disputes; a little sapling of wild tree which will be fertilized by this thriving technology and 21st century. It is not even a matter of few years when this is going to be the reason of yet another debate in the country. To point out what it is, I will take you back to Para 25 of the Judgment by Hon’ble Justice Abhay Manohar Sapre in which he has written,
25) “In my considered opinion, “right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being. ”
Justice Sapre rightly explained how “right to Privacy” is essentially a natural right of every human being by birth but he kind of overcooked the food by saying, “such right remains with the human being till he/she breathes last”. And further by adding “it is born with the human being and extinguish with human being.”
As soon as I read “such right remains with the human being till he/she breathes last” one question naturally popped up, “What about my privacy after I am dead?” For many, Right to Privacy after death would make no sense. Well, how about this? Imagine, you kept something under cover for your entire lifetime; you kept some confidential document in your safe and made sure none had access to it and now because you are dead and certainly helpless, can someone make an open house of your safe? When you die your body leaves this world, your important documents mostly end up with your heirs and even if they don’t, legal documents as such have nothing too private to reveal. However, in the era we are in, I would say we don’t need parallel world for second existence because we people on this Earth itself have formed multiple existences of ourselves, i.e. Facebook, Whatsapp, Instagram, Gmail, etc. We are living on so many social networking platforms one at the same time, interacting with people using these same platforms. What happens to all these profiles and accounts of yours once you are dead? What about the photos you uploaded, friends you made, the messages you have in that inbox; right from the time you were a teenager to the time you breathe last. Who shall manage these accounts? What if just because now that you won’t come back to claim, someone breaks into one of your accounts and all your messages are out? Won’t you want a legal protection for your privacy after you are dead? The technical term for this legal protection by the state to one’s privacy even after one’s body has left this world is called “Right to Posthumous Privacy”. ‘Right to Privacy’ is dependent on ‘Right to Reputation’ the same way Right to ‘Posthumous Privacy’ is dependent on ‘Posthumous Reputation’.

• Reputation and Privacy: Posthumous Reputation and Posthumous Privacy.

Meaning of Reputation:
Reputation literally means the commonly held opinion of a person's character, of a group of people or about an organization. It is the esteem in which a person is held by others. Reputation plays an important role in the field of education, business and social status. Reputation goes together with the identity of a person. Reputation can be either ubiquitous or spontaneous. It is the efficient mechanism of social control in natural societies. Evidence of reputation can be introduced as proof of character whenever character evidence is admissible. In India the protection to one’s reputation is provided by sec. 499 of the IPC which creates a criminal offence of defamation. Things cannot always be categorized as right and wrong. There may be two groups of people both right and yet won't agree on some xyz point. It does not mean one of these two groups is on the wrong side. It simply is diversity in their opinions and beliefs. If a person in order to respect someone else's diversity of thought and their opinion about him doesn't make a fact about himself public knowledge and after his death the same fact is made public by media which would lower his name in the group because of the diversity in thoughts and beliefs of this other group. Wouldn't it amount to an attack on the deceased reputation? Shouldn't media and lawyers keep in mind that the concerned subject in such cases won't come back to defend his reputation? If none then who will protect this reputation of the dead? It is time that we acknowledge posthumous reputation. How do we recognise Posthumous Reputation? Posthumous awards are the living proofs of the reputation of the dead. Neerja Bhanot, for her bravery, by the Government of India was posthumously awarded the Ashoka Chakra Award, India's highest gallantry award for bravery in the face of the enemy during peace time. She is the youngest recipient and the first woman recipient of this award.  Bhanot's brother Aneesh went to Washington, D.C., in 2005 to receive the "Justice for Crimes Award" awarded posthumously to her as part of the Annual Crime Rights Week at a ceremony held at the United States Attorney's office for the District of Columbia.  On 2 July 2016, the Bharat Gaurav Award was conferred on her at a ceremony held at the House of Commons, UK Parliament in London, England.  Recently, Prince Harry accepted Attitude magazine's Legacy Award on behalf of his mother, Princess Diana. Bharat Ratna award has been bestowed upon 45 individuals, including 12 who were awarded posthumously.
Why do we need to honour these people after their death? Doesn't this build their Posthumous Reputation? What is the need? Is it to elevate their families’ name? Well no, but to honour those good men who left without receiving their part of appreciation.
There have been instances when peps through media have been very insensitive and were seen compromising with someone’s privacy after that person’s death. The New York Times published an article titled “A deadline call on Posthumous Privacy ” featuring the information of the death of Sally Ride in 2012; the first American woman to fly in space and her survivor. It was only after the name of the survivor that people had an inkling of Sally’s personal life and sexual orientation. The article ended with “It all seemed like just what Sally Ride would not have wanted.” And yet Public eye was given to it. This whole incident was called Posthumous coming out and was covered by most of the newspapers then. Where, all of them at the same time also added on how Sally was a very private person but none really respected. It was needed to acknowledge that if a personal question is not raised in someone’s lifetime, it should not be raised after his/ her death as it is an attack on person and the person itself is not available to defend his/ her own self.
There was this second instance where the family of a twenty-year-old U.S. Marine killed in Afghanistan received notification of his death.  Although the Marine’s family received his physical personal possessions, they also wanted access to his ‘Yahoo!’ email account as a way to remember him. Yahoo! barred the request because company policy prohibited the sharing of login credentials with anyone except the account holder. However, the following year, a probate court in Michigan ordered ‘Yahoo!’ to turn over the contents of the deceased Marine’s email account to his father. Therefore, by ordering ‘Yahoo!’ to grant the Marine’s father access to the contents of his email account, the court essentially ordered the “return” of his property in the same way that his physical possessions were delivered to his family upon his death. This illustrates how a court may blur the line between digital assets and real property.  However, does it mean Posthumous Privacy is to be governed by Property laws? Where again property law is not developed to address digital assets and secondly treating digital assets as real property subject to intestate laws may result in unintended transfers of digital assets to the deceased’s next of kin. For detangling of these above threads it is first needed to draw a line of legal explanation in between ‘real property’ and ‘digital assets’. Then further the governance can be looked into. Extending existing law of Torts would be the most effective method of protecting the privacy of a deceased user. Under current common law, a deceased individual does not have a Right to Privacy, but the judiciary is already well-positioned to fill this gap in law of torts to meet this pressing need in order to protect the deceased’s privacy rights. Courts can achieve this by broadening current ‘Law of Torts’ to apply posthumously and give the deceased an inherent right of privacy. Currently, only a living individual can bring a tort claim for invasion of privacy. Not even an heir can recover under this tort on behalf of a deceased individual; only the individual whose privacy has been violated can bring a claim. This stems from the idea that the concept of privacy is personal and can only be asserted by the individual whose privacy was invaded. It is a well laid principle that an “action does not survive the death of the party whose privacy was invaded unless the complaining party's privacy was also invaded.” Therefore, under the current doctrine, the deceased, or his representatives, cannot recover for the invasion of the deceased’s privacy.  
The position of Posthumous Privacy and claim of it slightly varies in France. It started when the court of Human Rights was approached by the heirs of late President Mitterrand after the deceased President’s private physician Dr. Gubler decided to publish his book, because he felt his reputation as a physician was at stake for the media asked critical questions about the quality of the treatment received by the President. It was President Mitterrand’s decision to keep his illness hidden from the general public and during his lifetime he did the same, owing to exactly which Gubler had to defend his medical practices after Mitterrand’s death and to publish the book in its current form. For, the book – as the most important matter in this lawsuit covers this same secretive behaviour of the late President. Hence, the actions of Mitterrand played a vital role on two levels. There was a difference of only ten days between the death of the President and the publication of LE GRAND SECRET. Mitterrand died on 8 January 1996; the book was published on 17 January. The application by the heirs of Mitterrand was lodged on the same day. This was a major pillar of the case and one of the motivations for the ECHR to decide that there had been no violation of Article 10[freedom of expression and information]. The book was primarily about the understanding between President Mitterrand and his private physician, the proceeding of his disease and the combined efforts to conceal the illness for the general public in France. The statements in the book which violated Mitterand’s posthumous privacy could not have been centre to a debate.   The illness was kept disclosed for many years for the general public to not form opinions. Of course, there is always a discussion about the sitting head of state as long as he is in function and many a times even after that.  This secret of his physical condition would have been buried along with the subject, which the late President himself would have preferred. However, as soon as the truth came out, it was immediately a part of public debate. And as the passing of the late President became more distant in time, the balance shifted towards the public interest. Had Mitterrand’s illness affected his political capacities? From this question “in Public Interest” was extracted.  Eventually, discussion about the two term presidency of Mitterrand preceded over posthumous privacy – and the concealing of his illness as part of the bigger picture should be included in the debate. So for this privacy case and most of the defamation cases, the balance eventually shifted towards public debate about contemporary history. A big difference from the defamation cases here is that private facts were disclosed in the book, but what made it unlawful and liable according to criminal law was that these facts were – on top of being a violation of privacy – part of Gubler’s obligation to medical confidentiality. In this case, the claim to a breach of medical confidentiality was invoked to initiate civil proceedings regarding the violation of one’s right to privacy. The book was not categorized as an attack, even though the time lapse between death and publication was just a few days.  The initial accusation in the domestic courts was a breach of medical confidentiality as a violation of the posthumous privacy of the late President and the privacy of his heirs. Gubler was prosecuted according to both civil and criminal law, because his breach of professional medical confidentiality was a criminal offence according to the French Penal Code. When he was sentenced to a suspended imprisonment of four months, the civil proceedings went on. The government – as the defendant – argued that the ban on the publication of the book had been intended to ensure medical confidentiality and to prevent “the disclosure of information received in confidence”. Moreover, Plon’s claim relied on Article 10 of the Convention, which provides a possibility to restrict freedom of expression.  Also, the ECHR recognized that the banning of the book as a temporary measure was intended to protect the late President’s rights under Article 19.3. What stands out as well is that, the honour of the late President was mentioned by the ECHR. Technically this case showed no overlap with posthumous defamation since the statements in Le Grand Secret were true and true statements can never constitute defamation. The defendants did not have the opportunity to invoke the defence of truth, since the complaint was not defamation, but a breach of the right to Posthumous) Privacy. Instead, the defendants used the defence of the public interest. Plon argued that they had contributed in revealing a ‘state lie’ and to the right of the French electorate to receive information about their President. The defendants in the Mitterrand case also pleaded ‘good faith’, since they “could not have known” that the publication of Le Grand Secret constituted a breach of medical confidentiality. This was rejected by the ECHR. In the final decision by the ECHR, Article 10 prevailed. The domestic courts decided that a breach of medical confidentiality had taken place. The ECHR, however, added to this decision that the banning had only been justified in the year of 1996.The ECHR ruled that there had been a violation of Article 10 after 1996, when the ban on publishing was still maintained. Hence, the balance between the right to privacy and the public interest shifted over time. The lapse of time eventually affected the final decision by the ECHR. After the passage of time, the public interest in a debate became more pressing.

Many people contend that, “what harm does cause to a person after his death? Isn’t death end of everything?” Well, death might be the end of that person’s life but his reputation doesn’t die with that person. As already said above, a person’s reputation survives his death. And more to it, a person can be wronged without being harmed. One such example is from the year 1428 when the remains of John Wyclif, who died in 1384, were exhumed and burned by the Catholic Church to punish him for his criticisms of the doctrine of transubstantiation. 

• Privacy and Media:

Before concluding the paper I would like to fetch your attention to Biographers and Media. It has been seen that biographies on a famous person are published within months of his/ her demise, at times within days. There are disturbing facts about the person which are modified, spiced up and presented to engage the readers group. And whenever the heirs or families of such demised person try to sue the author for defamation, in the name of “Public Interest” or “Media freedom” such writers are sheltered and protected. What we forget here is that firstly, media freedom is not absolute; it comes under the fundamental ‘Right of Expression’. Hence, is also bound to reasonable restrictions. And second, if an author in a biography or any of his literary works has hammered the reputation of the demised, certainly has wronged the dead. One should always keep in mind that writing about the dead in itself is a sensitive matter for, the subject can never come back to deny the facts stated in the book. And just because a person is no more in a position to defend himself, does not mean his reputation can be compromised with. It should be minded that crossing of a line of moral turpitude also amounts to offences.

• Conclusion:

Yes, your outlook at this might be different but the technology and social media platforms are hovering over our privacy as stringent clouds, it’s not just Aadhar but our smart – phones, our laptops as well. Hence, it is needed that the Supreme Court through its bench of 5 judges opens the doors and lets the winds out, for those clouds to be channelized.  If we need something now, it isn’t to blame some authority or person for the breach of our privacy right but to ask for creation of a legal aid which would match the pace of thriving technology because using the gadgets becomes easy in the present time, where, we people tend to neglect that the roots of consequences are deep down into the soil which hold technology high and erect. I shall conclude here pointing that in this age where even our smart phones have our finger prints and especially when we die intestate with all these digital assets which has inner most of our personal information, it is needed that firstly we acknowledge legally that “right to Privacy” extends after death as “Posthumous Privacy” and in order to govern that extension of ‘Law of Torts’ is essential. The need is simple, to keep the glory of that dignity which right to privacy covers.