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Until Death Do Us Part: Post-Mortem Privacy Rights for the Ante-Mortem

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Until Death Do Us Part: Post-mortem Privacy Rights for the Ante-mortem Person Tina Davey Submitted for the Degree of Doctor of Philosophy University of East Anglia School of Law April 2020 © This copy of the thesis has been supplied on condition that anyone who consults it is understood to recognise that its copyright rests with the author and that use of any information derived there from must be in accordance with current UK Copyright Law. In addition, any quotation or extract must include full attribution. Abstract The qualified right of privacy that the living have under Article 8 of the Human Rights Act 1998 ceases upon death. This thesis questions why this is so and why that which is private in life should not remain so in death. It demonstrates that, within the context of the digital era in particular, the ante-mortem person can be harmed by post-mortem breaches of privacy thereby justifying the extension of Article 8 protection beyond death. It does so by examining the theoretical and jurisprudential basis of a number of existing legal protections afforded to the dead together with the philosophical harm thesis and the importance of society’s ‘intuitive’ feelings towards those who have died. This research is a unique contribution to the post-mortem privacy scholarship which currently focuses on the protection and transmission of ‘digital assets’ on death rather than privacy per se and does not utilise the harm thesis to justify the protection of Article 8 as the mechanism for doing so. 1 | P a g e Access Condition and Agreement Each deposit in UEA Digital Repository is protected by copyright and other intellectual property rights, and duplication or sale of all or part of any of the Data Collections is not permitted, except that material may be duplicated by you for your research use or for educational purposes in electronic or print form. You must obtain permission from the copyright holder, usually the author, for any other use. Exceptions only apply where a deposit may be explicitly provided under a stated licence, such as a Creative Commons licence or Open Government licence. Electronic or print copies may not be offered, whether for sale or otherwise to anyone, unless explicitly stated under a Creative Commons or Open Government license. Unauthorised reproduction, editing or reformatting for resale purposes is explicitly prohibited (except where approved by the copyright holder themselves) and UEA reserves the right to take immediate ‘take down’ action on behalf of the copyright and/or rights holder if this Access condition of the UEA Digital Repository is breached. Any material in this database has been supplied on the understanding that it is copyright material and that no quotation from the material may be published without proper acknowledgement. Table of Contents Abstract 1 Table of Cases 6 Table of Statutes and Legislation 10 Acknowledgements 11 CHAPTER 1 – INTRODUCTION 12 1.1 Post-mortem Privacy 13 1.2 Context 13 1.3 Structure of the Thesis using the Thematic Example of Soldier X 16 1.4 Summary 22 CHAPTER 2 – PRIVACY FOR THE LIVING 24 2.1 Introduction 24 2.2 Privacy as a Concept 28 2.2.1 Neutral Concept of Privacy: Identifying Losses of Privacy 29 2.2.2 Privacy as a Value: Identifying Invasions of Privacy 33 2.2.2.1 Value of Privacy to the Individual 34 2.2.2.2 Value of Privacy to Society 38 2.2.3 Privacy as a Legal Concept: Actionable Violations of Privacy 40 2.3 The Law 41 2.3.1 The Duty of Confidentiality 44 2.3.1.1 Breach of Confidence 48 2.3.2 Article 8: Meaning of ‘Private Life’ 49 2.3.2.1 Misuse of Private Information: Reasonable Expectation of Privacy 52 2.3.2.2 Misuse of Private Information: Balancing Exercise 53 2.3.3 Remedies 56 2.4 Context in which Privacy Law Functions Today 57 2.5 Conclusions 59 CHAPTER 3 – EXISTING LEGAL PROTECTION FOR THE DEAD 61 3.1 Introduction 61 2 | P a g e 3.2 Who has the Right – the Living or the Dead? 65 3.2.1 Will and Interest Theories 66 3.2.2 Critical Interests 70 3.3 Testamentary Freedom 73 3.3.1 Historical Background 74 3.3.2 Analysis of Testamentary Freedom as a Law that Protects the Dead 77 3.3.3 Conclusion 79 3.4 Organ Donation 81 3.4.1 Historical Background 83 3.4.2 Organ Donation Today 85 3.4.3 Analysis of Organ Donation as a Law that Protects the Dead 87 3.4.4 Conclusion 89 3.5 Burial 90 3.5.1 Right to a Decent Burial 92 3.5.2 No Property Rule 94 3.5.3 Rules as to Entitlement to Disposal of the Corpse 95 3.5.4 Conclusion 96 3.6 Medical Confidentiality 98 3.6.1 The Ethical Obligations 98 3.6.2 The Legal Obligations 100 3.6.3 Conclusion 102 3.7 Conclusions 103 CHAPTER 4 - POST-MORTEM PRIVACY 105 4.1 Introduction 105 4.2 Definition and Scope of Post-mortem Privacy 110 4.3 Ascription of the Right of Post-mortem Privacy 118 4.3.1 Post-mortem Privacy Right for the Dead Themselves 118 4.3.2 Post-mortem Privacy Right for Another Entity 122 4.3.3 Post-mortem Privacy Right for the Living 126 (a) Ante-mortem Person 126 3 | P a g e (b) Surviving Person: Post-mortem Relational Privacy 127 (i) Development of the Concept in US Jurisprudence 129 (ii) ECtHR Recognition of Post-mortem Privacy 136 4.4 Theoretical Underpinnings 137 4.4.1 Autonomy and Testamentary Freedom 137 4.4.2 Harm 140 4.5 Conclusions 143 CHAPTER 5 – LEGAL INTUITION MEETS PHILOSPHICAL HARM 145 5.1 Introduction 145 5.2 Intuition 148 5.2.1 Recalcitrant Intuitions 153 5.2.2 The Law Begs to Differ 155 5.2.3 Legal Fictions 156 5.3 Harm 159 5.3.1 Analysing the Concept of Harm as a Setback of ‘Interests’ 160 5.3.2 Analysing the Concept of Harm as a ‘Loss’ 163 5.4 Subject 165 5.4.1 Living Interest Bearers 166 5.4.2 Backward Causation 167 5.4.3 What this Thesis says on the Subject 169 5.5 Time 173 5.6 Symmetry and Societal Harm 175 5.6.1 Symmetry 175 5.6.2 Societal Harm 179 5.7 Conclusions 180 CHAPTER 6 – POST-MORTEM RELATIONAL PRIVACY 183 6.1 Introduction 183 6.2 Context in which Post-mortem Relational Privacy is Developed 187 6.3 Scope of the Proposed Post-mortem Relational Privacy Right 189 6.4 Harm to the Surviving Living 191 4 | P a g e 6.4.1 Thwarting the Survivor’s ‘Other Regarding’ Interests 192 6.4.2 Harm Inflicted upon the Survivor’s ‘Self Regarding’ Interests 196 6.4.3 Societal Harm 198 6.5 Intuition 198 6.6 Tentative Shoots of a Post-mortem Relational Privacy Right Emerging from the ECtHR 200 6.7 Existing Protection in the UK 213 6.8 Conclusions 222 CHAPTER 7 – CONCLUSIONS 223 7.1 Summary of the Post-mortem Privacy Right Constructed in this Thesis 224 7.2 Route by which this Thesis Constructed the Post-mortem Privacy Right 226 7.3 Enforcement 231 Guardian Post-mortem 233 (a) ‘Knowledge’ Harm 234 (b) ‘No Knowledge’ Harm 235 (c) ‘Chilling Effect’ Harm 236 7.4 Recommendations for Further Research 236 BIBLIOGRAPHY 239 5 | P a g e Table of Cases A v B [2002] EWCA Civ 337 [2003] QB 195 A v B. C. D [2005] EMLR 26; [2005] EWHC 1651 (QB) A v Norway App no. 28070/06 (9 April 2009) AG v Guardian Newspapers (no 2) [1990] 1 AC 109 Airedale N.H.S. Trust –v- Bland [1993] AC 789 Ambrosiadou v Coward [2011] EWCA Civ 409 Argyll (Duchess) v Argyll (Duke) [1967] AC 302 ASG v GSA [2009] EWCA Civ 1574 Associated Newspapers v HRH Prince of Wales [2006] EWCA Civ 1776 [2008] Axel Springer AG v Germany App no. 39954/08 (7 February 2012) Bãrbulescu v Romania (2017) 44 BHRC 17 Barrymore v News Group Newspapers Ltd [1997] FSR 600 Bensaid v United Kingdom (2001) 33 EHRR 205 Blethen Me. Newspaper, Inc. v. Maine, 871 A 2.d 523, 525 (Me.2005) Burghartz v Switzerland, App no 16213/90 (22 February 1994) Burrows v HM Coroner for Preston [2008] EWHC 1387 Campbell v MGN Newspapers Ltd [2004] UKHL 22 [2004] 2 AC 457 Catsouras v Californian Highway Patrol, 181 Cal. App 4th 856 (Cal. Ct. App.2010) CC v AB [2007] EMLR 11 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 Coogan and Phillips v News Group [2012] EWCA Civ 48 [48] CTB v News Group Newspapers Ltd and Imogen Thomas (no 1) [2011] EWHC 1232 Dawson v Small Law Rep. 18 Eq. 114 Douglas v Hello! (No 1) [2001] QB 967 [2000] EWCA Civ353 Douglas v Hello! Magazine Ltd [2001] 2 ALL ER 289, CA Douglas v Hello! Ltd (No 2) [2003] EMLR 28 Douglas v Hello! (No 6) [2003] EWHC 2629 (Ch); [2004] EMLR 13 Douglas v Hello! (No. 3) [2005] EWCA Civ 595 Douglas v Hello! [2007] UKHL 21; [2008] 1 AC 1 Dzhugashvili v. Russia (2014) ECHR 1448 Earnhardt v. Volusia County, Office of the Ed. Exam’r, No 2001-30373-CICI (Fla. Cir. Ct. July 10, 2001) 6 | P a g e Éditions Plon v France [2004] ECHR 200 Estate of Kresten Filtenborg Mortensen v. Denmark (Dec.) App no.
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