Digital Afterlives And Post-Human Jurisprudence - Rethinking Rights Beyond Death
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Category: Technology, Cyber & Privacy
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DIGITAL AFTERLIVES AND POST-HUMAN
JURISPRUDENCE: RETHINKING RIGHTS BEYOND DEATH Dr Kriti Singh, Associate Professor, Amity School of Communication, Noida, Post Doc Scholar, Manipur International University Introduction In the twenty-first century, human existence has extended into digital realms where identities, memories, and assets often outlive biological death. Research from the Oxford Internet Institute in 2019 estimated that Facebook could host as many as 1. 4 billion deceased users by the end of this century, underlining the unprecedented scale of “digital afterlives. ” 1 Similarly, Google’s “Inactive Account Manager” provides mechanisms for users to determine the fate of their digital presence after death. 2 These developments highlight an emerging legal frontier: the governance of post-mortem digital rights.
Traditional legal frameworks in India and abroad were not designed to address the complexities of digital remains. The Indian Succession Act, 1925, for instance, regulates inheritance of tangible property but is silent on digital assets or virtual identities. 3 Comparative jurisdictions have begun experimenting with solutions: France’s Loi pour une République numérique (2016) allows individuals to create “digital wills,” while the United States has seen litigation such as Ajemian v. Yahoo! (2017), where the Massachusetts Supreme Judicial Court held that the Stored Communications Act did not bar disclosure of a deceased user’s emails to estate administrators. 4 These responses, however, remain fragmented and anthropocentric, often treating digital traces merely as property rather than as extensions of personhood.
The rise of artificial intelligence (AI) and data-driven technologies complicates the picture further. Patents such as Microsoft’s 2021 filing for a chatbot capable of simulating the personality of deceased individuals raise difficult questions of legal personhood, liability, and dignity. 5 When avatars, holograms, or AI agents trained on personal data continue to act 1 Carl J Öhman and David Watson, ‘Are the Dead Taking Over Facebook? A Big Data Approach to the Future of Death Online’ (2019) 6 Big Data & Society 1. 2 Google, ‘About Inactive Account Manager’ https://support. google. com/accounts/answer/3036546 accessed 11 September 2025.
3 The Indian Succession Act, 1925.
4 Ajemian v. Yahoo! Inc., 478 Mass. 169 (Massachusetts Supreme Judicial Court, 2017).
5 Microsoft Patent US20210047526A1, ‘Creating a Conversational Chatbot of a Specific Person’ (filed 2019, published 2021) beyond a person’s death, the boundaries between property, identity, and agency blur. These scenarios move the debate from classical inheritance law to speculative jurisprudence—law that anticipates post-human futures. In this context, “digital afterlives” demand reconceptualisation not only as issues of privacy or succession but as matters of post-human jurisprudence. The central question is whether law, traditionally built around living human subjects, can evolve to govern entities that persist beyond death and may even acquire autonomy. This chapter argues that a post-human legal framework must engage with dignity, accountability, and rights in a manner that rethinks law beyond the biological human.
2. From Digital Property to Post-Human Identity
Legal frameworks across jurisdictions have so far tended to conceptualise the digital legacy of deceased persons primarily as a matter of property. Social media accounts, emails, cryptocurrency holdings, or cloud-stored files are often categorised as digital assets that may pass to heirs under inheritance law. 6 In India, however, the Indian Succession Act, 1925 remains silent on the subject, creating a lacuna in the treatment of online assets. 7 Without explicit statutory recognition, disputes over access to deceased persons’ digital remains are addressed on a case-by-case basis, often relying on platform-specific terms of service rather than consistent legal principles. Comparative experience highlights both the limitations and the possibilities of this propertybased approach.
In the United States, the Uniform Law Commission promulgated the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in 2015, providing fiduciaries with authority to manage certain digital property after death, subject to user consent. 8 Courts have also confronted disputes, as in Ajemian v. Yahoo! Inc. (2017), where the Massachusetts Supreme Judicial Court held that estate administrators could seek access to a deceased user’s email content. 9 Yet these developments treat digital data as transferable property rather than recognising its intimate connection to identity and personhood. Europe has experimented with more identity-sensitive approaches.
France’s Loi pour une République numérique (2016) allows individuals to set directives regarding their data after 6 Daniel J Marvit, ‘Digital Assets and Death: The Problem of Planning for a Digital Estate’ (2012) 37(1) Probate & Property 36.
7 The Indian Succession Act, 1925.
8 Revised Uniform Fiduciary Access to Digital Assets Act 2015 (United States).
9 Ajemian v. Yahoo! Inc. 478 Mass. 169 (Massachusetts Supreme Judicial Court, 2017).
death, effectively enabling “digital wills. ”10 The General Data Protection Regulation (GDPR) does not extend posthumously, but certain member states, such as Germany, have interpreted constitutional privacy rights to include elements of digital dignity even after death. 11 These shifts suggest a gradual move towards recognising digital remains as more than mere assets. The challenge lies in the unique character of digital identity. Unlike tangible property, digital traces are not only repositories of economic value but also manifestations of memory, reputation, and personality. Social media profiles, photographs, and messages form part of a person’s relational identity, raising questions of dignity and autonomy that cannot be resolved by property law alone. 12 This is further complicated by technological advances that allow the reanimation of digital data into semi-autonomous entities.
Microsoft’s patent for a chatbot simulating a deceased individual demonstrates that digital traces can evolve into active agents, blurring the line between record and replica. 13 In such cases, inheritance frameworks are illsuited: what is transferred to heirs is not a passive asset but a dynamic extension of identity. This shift necessitates a move from viewing digital legacies solely as property towards considering them as part of post-human identity. A jurisprudence that recognises digital afterlives as extensions of the self—albeit in altered, technologically mediated forms—would allow law to engage with questions of dignity, accountability, and rights. Rather than reducing digital remains to items of succession, post-human jurisprudence demands that they be situated within debates about personhood, autonomy, and the evolving relationship between humans and machines.
3. Digital Avatars and Speculative Personhood
The rapid development of artificial intelligence has created possibilities for reanimating the dead in digital form. Beyond passive archives of photographs or messages, new technologies allow the creation of interactive avatars, holograms, and chatbots trained on the digital traces of deceased individuals.14 These avatars blur the line between memory and presence, raising the profound legal question: can entities that simulate the behaviour and personality of the dead
10 Loi n° 2016-1321 du 7 octobre 2016 pour une République numérique (France).
11 Bundesgerichtshof (German Federal Court of Justice), Case No. III ZR 183/17 (12 July 2018).
12 Carl J Öhman, ‘The Moral Ambiguity of Posthumous Digital Data’ (2019) 8(2) Ethics and Information
Technology 91. 13 Microsoft Patent US20210047526A1, ‘Creating a Conversational Chatbot of a Specific Person’ (filed 2019, published 2021)
14 Hossein Rahnama, ‘Artificial Intelligence and the Digital Afterlife’ (2021) MIT Technology Review
https://www. technologyreview. com/2021/04/05/1021410/artificial-intelligence-and-the-digital-afterlife/ accessed 11 September 2025. acquire a form of personhood? Examples from industry illustrate how quickly this frontier is unfolding. In 2021, Microsoft secured a patent for technology capable of producing chatbots modelled on the voice, text, and personality of a specific deceased individual. 15Similar technologies have been trialled in South Korea, where a documentary featured a grieving mother “reunited” with her deceased daughter through a virtual reality simulation. 16Commercial enterprises also offer AI-powered memorial services, promising to keep loved ones “alive” through interactive digital surrogates. 17 These developments compel legal systems to re-examine doctrines of identity, dignity, and liability in post-mortem contexts.
Classical legal theory has been reluctant to extend rights or duties to the dead. The maxim actio personalis moritur cum persona reflects the view that legal claims die with the person. 18 Yet post-human technologies challenge this assumption. If an AI avatar continues to generate speech, interact socially, or even conduct transactions, questions of accountability and recognition emerge. Should such avatars be considered property owned by heirs, as fiduciary law suggests, or quasi-persons entitled to limited rights? Comparative scholarship offers some analogies. In corporate law, non-human entities such as companies enjoy legal personhood despite lacking physical existence. 19 Similarly, environmental jurisprudence has recognised rivers and ecosystems as legal persons to safeguard their interests, including by the Uttarakhand High Court in India.
20 Extending such reasoning, one could argue that avatars of the deceased—especially when autonomous—may warrant a legal status beyond mere property, if only to regulate accountability. Ethical dilemmas accompany these speculative possibilities. AI avatars may perpetuate bias, misrepresent the wishes of the deceased, or be manipulated for commercial or political ends. A “deepfake” of a deceased public figure could be deployed to spread misinformation or commit fraud. 21 Current legal tools such as data protection law or intellectual property are ill-equipped to address these risks, since they regulate information or creative outputs but not identity 15 Microsoft Patent US20210047526A1, ‘Creating a Conversational Chatbot of a Specific Person’ (filed 2019, published 2021).
16 BBC, ‘South Korean Mother Meets Virtual Reality Version of Daughter’ (7 February 2020)
https://www.bbc.com/news/technology-51461051 accessed 11 September 2025.
17 Somnium Space, ‘Live Forever Mode’ (2022) https://somniumspace.com/ accessed 11 September 2025.
18 J H Baker, An Introduction to English Legal History (5th edn, OUP 2019) 481.
19 Salomon v A Salomon & Co Ltd [1897] AC 22 (HL).
20 Mohd. Salim v State of Uttarakhand 2017 SCC OnLine Utt 367 (Uttarakhand HC).
21 Robert Chesney and Danielle Citron, ‘Deep Fakes
A Looming Challenge for Privacy, Democracy, and National Security’ (2019) 107 California Law Review 1753. continuations. Scholars have therefore called for frameworks that explicitly consider postmortem digital personhood, balancing the dignity of the deceased with the rights of survivors and the integrity of public discourse. 22 At the same time, caution is necessary. Recognising avatars as full legal persons may risk trivialising the concept of personhood or diluting accountability. A middle path may involve recognising avatars as “juridical entities”—akin to corporations or trusts—capable of holding rights and obligations defined by statute. Such a framework would allow regulation of liability (for instance, in cases of avatar misuse) without equating simulated consciousness with human life.
Ultimately, the debate on digital avatars illustrates the speculative dimensions of post-human jurisprudence. While current technology does not produce sentient consciousness, the legal imagination must anticipate futures where the distinction between human and machine is increasingly blurred. By engaging with speculative personhood, law can prepare to safeguard dignity, regulate accountability, and navigate the ethical terrain of digital afterlives.
22 Carl J Öhman, ‘The Afterlife of Data
What Happens to Your Information When You Die?’ (2020) The Conversation https://theconversation.com/the-afterlife-of-data-what-happens-to-your-information-when-youdie-136779 accessed 11 September 2025.