In 1903, a lawyer called W. Archibald McClean predicted that whatever ‘the future dominion of the right to privacy’ would be, it would be built on the premise ‘that whatever right of privacy an individual has, dies with him or her.’ Call this traditional view the ‘no-privacy-right-for-the-dead’ doctrine. In this event organised by Spui25, Anita Allen will discuss with other experts how today, a more sustained consideration of postmortem privacy is essential. This is especially so as there are increasing calls to protect rights to digital assets linked to a deceased person and there is ever improving technology, including generative artificial intelligence, that allows for the reanimation of both deceased performers and ordinary loved ones. Several proposed laws that would explicitly extend rights to the future performances of the dead have recently been circulated, something that formed a key provision of the recent Hollywood collective bargaining agreement between producers and the actors’ union. At the same time, the societal disfavoring on privacy grounds of the sensationalization of a person’s death is both longstanding and evergreen, think for example of the recent crash scene photographs of basketball superstar Kobe Bryant.

Anita Allen will explain why the no-privacy-for-the-dead doctrine is untrue in tort law and beyond, and why it should be. It will identify interests warranting protecting and concerns about income, race and gender equity that must contour postmortem privacy.