The right to digitally resurrect the dead

Having a conversation with a person who has passed away is possible. Artificial intelligence enables its digital resurrection. Through their posts on social networks, photographs, videos, voice recordings, emails or messages, a computer program can be created capable of reproducing the way of speaking and the physical features of the deceased, even imitating their sense of humor or sarcasm. However, the ethical and legal questions generated by this type of technology are numerous.

Although Tim O’Brien, Microsoft’s head of Ethics, said in January that they would not continue with the patent for conversational software that simulated chats with the dead because it was too “disturbing”, other chatbots of this type can be downloaded directly to mobile phones. For example, the alter ego of the young Russian Roman Mazurenko is available on the App Store. After dying suddenly at the age of 32, his best friend brought him back to life online. To do this, he collected all the messages that he had sent to her and other mutual friends, with which he designed a program that reproduces the speech patterns of the deceased young man. You just have to download it to start chatting with it. “Shall we talk?” he says from the phone screen.

But is it legal for one person to digitally resurrect another who is gone? Efrén Díaz, head of Technology at the Mas y Calvet law firm, explains that if the deceased has not objected before dying, revitalization is possible through the use of photos of him on networks, videos, messages, etc. “However, in such cases, the people linked to the deceased can exercise the right of suppression before the various social networks.” That is, they can go to Facebook, Google or YouTube to delete the accounts they had open.

And it is that, although “a deceased person does not have the right to privacy”, the law allows their relatives to access, rectify or delete their personal data before the person in charge of their management.

A different issue is that there were “prohibitions on the processing of personal data imposed by the deceased or by law”, in which case “a living person could not resuscitate a dead person without their consent”, explains the lawyer. In other words, “text messages or WhatsApp sent while the deceased was alive can be used to create a chatbot” provided he had not objected to it before leaving.

In this sense, Pablo Burgueño, lawyer of counsel of PwC, explains that the data protection law regulates “the right to a digital will”, where the person can indicate how they want their relatives, heirs or an executor to manage their electronic content. This document could record the refusal to have another bring you to life online after physical death.

Unlike the inheritance will, in which the individual disposes of all or part of his assets after his death, the digital will is a legal document that allows a person to give instructions on what to do with his presence on the network once you die, for example, with digital accounts and subscriptions, network profiles or emails.

Among the most innovative legal instruments, the recent proposal for a regulation from the European Commission on the rules applicable to artificial intelligence stands out. The Community Executive has established different levels of risk, to which it imposes more or less obligations depending on their categorization. As Burgueño explains, there are artificial intelligence systems that are prohibited because they imply an “unacceptable risk” to security, life or fundamental rights, such as those that can predict information about groups of people to identify their vulnerabilities.

Fingerprint

Specifically, the chatbot Conversational conversations with deceased people carry a “limited” level of risk, which means that those who use this type of artificial intelligence must ensure that users are aware that they are interacting with machines.

The same level of risk applies to deepfakes, that is, to videos manipulated by artificial intelligence that appear to be real. Among them, those that revive deceased people stand out, which applications such as Deep Nostalgia or Wombo do. Through artificial intelligence, they can animate photos of loved ones who are no longer there through effects such as smiles, eye movement, blinking or slight head movements. The result is similar to the photographs that moved in the films of Harry Potter.

Currently, there is no regulation that specifically regulates the digital footprint of the deceased, that is, the trace they left behind when using the internet. “There is the so-called right to be forgotten, which refers to the possibility of preventing the dissemination of personal information, but not specifically in the case of deceased people, but in general,” explains Bárbara Sainz, Associate of Intellectual Property and Technology at the Gómez law firm. -Holly & Pombo. Thus, this right allows the user to request that their personal information be removed from the Internet when it violates their right to honor, their right to privacy or their own image. And also when it is obsolete information that no longer makes sense to continue having access to it.

In the opinion of the lawyer, “it would be advisable to address a regulation of these issues” at the national level. For example, “Catalonia, following the example of countries like France, approved the law of digital wills that regulates the fingerprint when the person dies”, although “some provisions have been declared unconstitutional for invading state powers”.