In a case in which a man sought his deceased mother’s social work records (to support an attack on her will) under FOISA, these being refused by Edinburgh CC, he said:
”33. I will first consider whether the disclosure of the information in Mrs S’s social work file would constitute an unjustified interference with the right contained in 
Article 8(1). As noted in the guidance issued by the Information Commissioner and referred to above, a number of matters may be relevant: the more recent the death and the more sensitive the information, the more likely that disclosure would have an adverse effect on the rights of the surviving people closely connected to the deceased. 
34. However, a public authority must consider all the other requirements of Article 8(2) including whether or not disclosure would be proportionate in relation to the harm that may be caused. Article 8(2) provides: 
There shall be no interference by a public authority with the exercise of this right [the right to respect for private and family life, home and correspondence] except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 
35. Having reviewed the information contained in the social work file, I am satisfied that the disclosure of the information contained in the social work files would be an intrusion on the privacy of surviving relatives and would amount to a real and definite breach of their private or family life. I have also considered whether Article 8(2) would allow disclosure and whether or not the disclosure would be proportionate in relation to the harm that may be caused. I do not consider that the disclosure would be allowed by Article 8(2) or would be proportionate in the circumstances, particularly given that release of the information in response to Mr S’s information request under section 1 of FOISA would result in the social work file being in the public domain. “

See http://www.itspublicknowledge.info/UploadedFiles/Decision165-2007.pdf. This analysis seems to me to be correct.

Extending data protection rights to the dead would be problematic, partly because data protection rights are precisely intended to be exercised by the affected individual rather than by others on their behalf. (This causes complications with personal data relating to children, for example – where I would say the need for clearer guidance is more urgent than in relation to dead people.)

That said, it does seem odd that the moment someone dies, their personal data falls into a legal abyss. So perhaps some form of limited continuance of data rights (e.g. as regards subject access requests) for say five years after death would not be too onerous for data controllers.

As regards the Catsouras case, I wonder if anti-harassment legislation could be applied? Certainly in the case of the vicious moron emailing the young woman’s father, but given the breadth of scope of anti-harassment legislation, almost anyone who was offended or distressed by the images could presumably bring a complaint.

I wonder if the end-result of cases such as this will be an explicit extension of public order legislation to the internet. If someone behaved like this in “real life” – putting up posters of the images in public places etc. – then they would probably be charged with some sort of public order offence.

There must be some way in which the law can respond to something that is so glaringly wrong as the online publication of pictures of a recently-deceased teenager without compromising other digital liberties.

One would certainly hope so. Experience, alas, tends to indicate the opposite: legislation whose stated intent is to tackle these “obviously wrong” cases soon expands its scope to cover less obvious situations. Hard cases making bad law, and all that.

RW