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Are avatars immortal?

A death is always a profound event, with bereaved families often going through a tough grieving process. But what if we could allow deceased persons to live on in the form of an avatar? Wouldn't that be beautiful and make the grieving process easier? But do we want this, and if so, shouldn't it be regulated by law?

The digital legacy

People who are incurably ill face their own immortality head-on. This naturally makes them think about the end of life. Usually, this amounts to them organising their own funeral and taking steps to transfer their assets to the next generation. However, what they often lose sight of is arranging their digital legacy.

After all, what actually happens to all our digital data and online profiles when we die? After all, every that we leave behind a gigantic amount of digital data on the internet. It's not just about messages on social media, but also internet searches, e-mail traffic, photos and videos, etc. All this data does not simply disappear upon death. On the contrary, these data continue to exist even after the person who produced these data has died.

Currently, there are no specific legal rules on digital estates, so here we actually depend on terms of use of the digital platforms. In the early days of Facebook, the company had a "delete upon death policy", under which accounts were automatically deleted upon learning of a death. However, this policy was changed after the 2007 Virgina Tech University shooting, when Facebook received a lot of requests to keep the accounts of the deceased. Since then, there has been the option of creating profiles with memorial status to allow friends and family to share memories after a person dies. Other platforms such as LinkedIn have also followed this example.

Apple recently started offering the option to add a legacy contact to the Apple ID. According to Apple, adding a legacy contact is the easiest and safest way to give someone access to the data ( photos, messages, notes, files, apps ) stored in an Apple account after a death. However, some data, such as movies, music, books or subscriptions purchased with an Apple ID, and data stored in your keychain, such as payment details, passwords and passkeys, cannot be accessed by a legacy contact.

These solutions to deal with digital inheritance are interesting, but the question is whether they are also legally correct.

Apple recently introduced the option to add a legacy contact to the Apple ID. According to Apple, adding a legacy contact is the easiest and safest way to give someone access to the data ( photos, messages, notes, files, apps ) stored in an Apple account after a death. However, some data, such as movies, music, books or subscriptions purchased with an Apple ID, and data stored in your keychain, such as payment details, passwords and passkeys, cannot be accessed by a legacy contact.

These solutions to deal with digital inheritance are interesting, but the question is whether they are also legally correct. After all, in most cases, digital data are owned by the person who created or generated the data. If this person dies, then we should start considering these digital data as assets that belong to the estate and pass to the heirs. It is therefore not up to online platforms to start imposing restrictions on this. 

Can deceased persons live on digitally?

From a technical perspective, this is obviously possible. The simplest way to live on digitally is to keep profiles on social media, possibly as memorial profiles. In this case, this involves passively allowing a digital identity to continue to exist.

However, those who possess the digital data of a deceased person can of course go many steps further. For instance, wouldn't it be nice to be able to continue communicating with a deceased person after death? In theory, this is technically possible. For instance, it is perfectly possible to use artificial intelligence and a voice clone to create a chatbot with the voice of the deceased person, thus enabling a form of digital communication. And of course, this can also be done with a visual component such as avatars or holograms.

And this can lead to great stories. In 2020, for example, rapper Kanye West gifted Kim Kardashian a hologram of her deceased father. And in 2022, Indian couple Dinesh Sivakumar Padmavathi and Janaganandhini Ramaswamy married as avatars in the metaverse. The reason for this metaverse wedding was the death of the bride's father, who obviously could not be present as a person at the physical wedding, but could be present as an avatar at the wedding in the metaverse.

But it is of course obvious that this could also lead to abuses and confusion, especially if in the case of photorealistic avatars and holograms. For instance, can we allow heirs of famous politicians, to continue to intervene in the public political debate on social media with an avatar or hologram of their deceased father? And what if the rights to such an avatar are sold to dubious organisations?

Towards legal regulation

In the current state of affairs, it is mainly the online platforms, with their terms of use, that will determine how we should deal with digital estates. This is difficult to accept, especially since abuses cannot be ruled out. It is therefore up to the legislator, if need be, to start establishing rules on the use of digital data after death in an international context.