Written by: Oladejo Afeezat Oluwatosin (University of Ibadan)
INTRODUCTION
Whilst traditionally death is finalised to the extent that a person no longer has the freedom to exercise their personal rights, technology has caused many challenges to this assumption. With the introduction of artificial intelligence (AI), people can digitally create images, videos, audio and personal messages for deceased persons. Whilst this provides many opportunities to keep memories of deceased persons, there are concerns that need to be addressed. People can create AI images of deceased persons. This can create confusion by providing the opportunity to create fake endorsements, copies of personal messages, and may cause confusion as to what the deceased person would have said.
The main question becomes whether Nigerian laws currently protect the deceased person’s identity and personal information from being digitally copied. Whilst there are privacy laws and data protection laws in place, applying these to deceased persons can prove challenging. This article will take a look at the legal implications, cases and recommendations regarding AI images of deceased persons in Nigerian law.
DIGITAL RESURRECTION
Digital Resurrection refers to recreating or simulating a deceased person’s identity. This can take the form of using technology to recreate their face, voice, speech and personality.
For example, a company may use recordings of a deceased musician to create new performances,
and individuals may upload messages from the deceased relative and place them in a chatbot.
However, this may be lawful in certain situations.
For example, if a company creates a documentary, educational project or authorised memorial,
they may lawfully wish to use recordings of the deceased person. Issues may arise if there has been no correct consent for the creation or distribution of a replica. This can confuse as to what the deceased person said and may cause them to be misrepresented or exploited. Should we assume that technology allows us to recreate someone, therefore we have the right to?No.
LEGAL IMPLICATIONS IN NIGERIA
1. Constitution – Right to Privacy
Section 37 of the Constitution of the Federal Republic of Nigeria 1999 provides that a citizen’s privacy,
home, correspondence, telephone conversations and telegraphic communications are protected. Whilst this provides some protection to citizens’ privacy, it may not apply to deceased persons. Constitutional rights usually relate to living persons, and it would be risky to assume that
All privacy rights provided in the Constitution will apply posthumously.
However, if there are private communications of living people involved in creating
and distributing an AI image, this may be relevant.
2. Nigeria Data Protection Act 2023
The Nigeria Data Protection Act 2023 provides a framework for the lawful use of personal data. This includes the rights of data subjects, accountability and organisational obligations. This may be relevant; however,
whilst the definition of a data subject relates to an identified or identifiable individual,
the protections should not automatically be applied to deceased persons.
Whilst there may be personal data of living individuals involved in creating a digital replica,
for example, the deceased person’s voice may include other people’s voices. The private messages may also reveal personal information of surviving relatives.
Additionally, the Act may come into play
when AI developers gather and process personal information of living individuals to create the AI images.
This provides an important framework for looking at data processing with regard to AI;
it needs to be analysed to see if it applies to deceased persons.
3. Copyright
Certain elements of a deceased person may be protected by copyright. For example, original music, recordings, photographs and written works. The Copyright Act 2022 provides a framework for copyright in Nigeria. If there is copyright in a work, there may be issues regarding reproductions,
adaptations and authorisations of AI performances and images. However, copyright and personal identity are different. Just because someone owns the copyright in a photograph, it doesn’t mean they have full rights to the person’s identity.
Similarly, whilst the deceased person’s
family may have an interest in keeping their reputation intact, they may not own copyright of all recordings. This shows why copyright may not fully address the issues faced with digital resurrection.
RELEVANT CASE LAW
1. Roberson v Rochester Folding Box Co. [1902]
In this case, the New York Court of Appeals decided whether
there was a claim for using a young woman’s photograph without her consent in advertising.
This shows the difficulty faced historically with regard to using an individual’s likeness without their consent.
This relates to a living person and foreign law; it provides useful background into
why there may need to be specific protections against exploitation of personal identities. This case is not directly related to digital resurrection; AI makes it easier to recreate and exploit someone’s likeness.
2. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. [1953]
The United States Court of Appeals for the Second Circuit decided
that there was a valuable right to use a person’s photograph in this case. This is important as it shows that a person’s personal identity can have value. Careful consideration should be taken when applying this principle to digital resurrection.
It may raise questions regarding whether
there should be specific authorisations for using someone’s voice, likeness and recognisable persona in a deceased person.
However, this does not provide a general right to publicity in Nigeria for deceased persons. It can only be used as comparative material.
3. Midler v Ford Motor Co. [1988]
The United States Court of Appeals for the Ninth Circuit decided
whether there was a claim for using Bette Midler’s unique voice without her consent in an advert. They decided there may be a claim for using someone’s unique voice. This is particularly relevant to AI voice images. As AI systems can now mimic someone’s voice using recordings, businesses or individuals may create a realistic voice. However, this case relates to a living performer and foreign law. Therefore, it doesn’t show that there is currently a claim recognised in Nigerian law. These cases show that there are differences between personal identities, exploitation and copyright. They also highlight that there are limitations to using older legal principles to address issues caused by increasingly advanced AI.
MAIN LEGAL AND ETHICAL ISSUES
Consent
As the deceased person cannot give consent to their digital resurrection, there may not be full consent to this. Whilst there may have been preferences given by the individual whilst alive, these may not have covered all situations.
Therefore, whilst an individual may have given consent to their photographs being published
, they may not have given consent for an interactive image to be created with new statements.
Ownership
There may be differences between ownership of digital files, copyright and personal identity.
These may be owned by different people.There may also be issues
if relatives are given full control over the deceased person’s identity.
There may be disagreements between family members
and the wishes of the deceased person may not align with the wishes of surviving relatives.
A balanced framework should be put in place considering previous consent,
legitimate commercial interests, rights of living individuals and the wishes of the deceased person.
Fraud
AI images may be used to trick the public, ask for money, and create fake endorsements. A fake video could be created using the deceased public figure to endorse a product.
This would cause confusion amongst consumers and damage the deceased person’s reputation.
If there is fraud, defamation, exploitation for commercial use,
or other unlawful acts, there may be remedies available depending upon the situation. However, this will depend on the law, claimant and evidence.
Emotion
Digital resurrection may cause issues for surviving relatives. This may include replicating personal messages and creating images which may cause confusion with their memories. However, some families may find it comforting to have authorised digital memorials. The law should not automatically assume that all digital recreations are not allowed. It should consider whether the digital recreation is respectful and authorised, rather than causing confusion, exploitation and interference with others.
RECOMMENDATIONS FOR NIGERIA
Nigeria should consider creating a clearer framework for posthumous use of personal identities. This could include considering how previous consent, commercial exploitation, and AI images without consent should be handled. Individuals should be encouraged to state their preferences regarding digital images.
This could minimise any disputes after their death.
AI developers and platforms should have clear processes in place for complaints regarding unauthorised images.
This could include ensuring that the image is labelled as AI-generated,
having a reporting system in place, and quickly investigating genuine complaints. Differences should be made between copyright and personal identity. Just because someone owns a recording, i
t does not mean they have full permission to copy the identity.Any changes should be balanced between
the rights of surviving relatives, legitimate artistic and educational expression, freedom of expression and personal dignity. This will ensure that there are no issues with abuse but also not stop beneficial technological advances.
CONCLUSION
Artificial intelligence has created many opportunities to challenge our assumptions about death. Whilst digital resurrection can be used to keep memories and provide new artistic methods,
there are opportunities for confusion, exploitation and copying of personal identities. Nigerian law provides some starting points regarding this issue; it should not be assumed that all deceased persons are covered. Careful consideration should be taken to ensure that living people whose information appears in digital images are protected. Nigeria should consider whether more specific rules should be created to protect posthumous digital identities. This should ensure that individuals’ wishes are respected whilst also providing some protection against abuse. Ultimately, just because someone can be digitally recreated,
it does not mean that they have the right to control their identity.
Whilst technology can keep their voice alive after they have passed away, the law will decide how far this can go.
FAQs(FREQUENTLY ASKED QUESTIONS)
What is Digital Resurrection?
Digital Resurrection refers to using technology (AI) to recreate or simulate a deceased person. This can include recreating their face, voice, personality or how they communicate.
Is there a specific right to digitally remain private after death in Nigerian law?
There is no clear basis for claiming there is a comprehensive standalone
right to digitally remain private posthumously under Nigerian law. It will depend on the situation and the rules that apply.
Can a family bring a claim against someone for creating an AI image of a deceased relative?
Potentially. This will depend on the circumstances. Consideration should be given to copyright,
contractual rights, fraud, defamation, and the rights of living people whose data/rights have been affected.
Just because they are family members does not mean they automatically
own the deceased person’s identity or have the right to bring a claim.
Is a deceased person’s voice and identity protected by copyright?
Specific recordings, music, and original works may be protected by copyright. However, this does not mean they have exclusive rights to their voice or full identity. Other principles may apply depending upon the situation and law.
What should Nigeria do regarding AI images of deceased persons?
Nigeria should consider creating clearer rules regarding consent, exploitation for commercial use,
labelling of synthetic content and remedies for damaging digital impersonation. Any changes should be balanced between protecting against abuse whilst allowing legitimate expression and innovation.
