Deep Nostalgia animated portraits based on old photographs, from MyHeritageMYHERITAGE / Europa Press
In recent days a tool called Deep Nostalgia has generated some impact on social networks. It is an artificial intelligence capable of converting any photograph into a video and is designed, according to its creators, "to give life to beloved ancestors." It is not the first time that a company has encouraged users to use its technologies with old images. Tools like ImageColorizer or Algorithmia allow you to color black and white images and some platforms are used to create family trees and learn more about your ancestors. In a matter of seconds, anyone can upload images of their family members to the Internet or share on social networks. But does this practice affect the privacy of deceased persons?
Article 32 of the Civil Code establishes that with death civil personality is extinguished. In other words, as Samuel Parra, a data protection specialist , explains, "when we die we cease to have rights and obligations, without prejudice to the fact that some financial obligations are passed on to successors." Therefore, “we cannot violate the right to data protection of a deceased person.”
But even if the deceased loses the ability to be the holder of rights and obligations, there are certain situations in which the regulations allow their heirs or family members exercise certain actions. Organic Law 1/1982 on civil protection of the right to honor, personal and family privacy and to one's own image establishes that some family members – spouse, descendants, ascendants and siblings – can carry out the civil protection of honor, privacy and their own image of the deceased person up to 80 years after death. "If the image of the person in question is found in this case, these subjects could, for example, demand that the photograph of the deceased shared on social networks be removed," says Parra.
"There are well-known cases, such as that of the right-hander Paquirri ”, says Álvaro Orts Ferrer, an expert privacy lawyer and director of Orts Consultores . In 1984 the bullfighter died as a result of a goring that he suffered in a bullfight held in Pozoblanco (Córdoba). The images of the doctors trying to treat the bullfighter were disseminated by some media. "The family did not resort to civil protection, but came to the Constitutional Court upon understanding that the recording and commercialization of said images violated the right to privacy, honor and image of article 18.1 of the Spanish Constitution ," says the attorney. Both the Constitutional Court and the Supreme Court indicated that there had been an illegitimate intrusion into the privacy of his wife, Isabel Pantoja.
In addition, the lawyer specializing in data ethics Manuela Battaglini Manrique de Lara refers to article 3 of the Organic Law on Protection of Personal Data and guarantee of digital rights . This article establishes that the relatives of the deceased “may contact the person in charge of the treatment in order to request access to the personal data of that [person] and, where appropriate, its rectification or deletion”. Battaglini explains that family members can exercise these rights “as long as the data is in Spanish or European territory.”
Who has control of the photographs
In the case of the tools to give life or color to old photographs, it is usually the relatives themselves those who share different images. "Most of the people who have posted, uploaded or disseminated a photo of a relative, whether deceased or not, do so in good faith and with the simple purpose of sharing certain experiences or feelings related to the people included in the photos," he says. Orts.
Determining to what extent it is ethical or not to share these photos is complicated. In fact, there is no consensus among the experts consulted. The lawyer specializing in data ethics Manuela Battaglini Manrique de Lara comments that "it depends on how they are used." "I, personally, am not a supporter at all for the simple reason that total control over that image or video is lost, not only by posting it on networks, but we do not know where their servers are located and how to exercise our rights", it states.
Uploading a photo to the Internet or using it in an app is very simple. But, as indicated by the data protection expert Francisco Javier Sempere Samaniego , on many occasions eliminating it “is quite complex”. It is also important to analyze the environment in which these images are shared: “It is not the same to share a photo of a deceased relative that only other family members can access than if we publish the same photo on the open Internet. In the first case, the publication would remain in what is called an area of domestic and private use ”. Similarly, for the purposes of possible harm, it is also important if the deceased person appears “in a compromised situation.”
The data business
For Orts, the most advisable thing would be to make responsible use of these networks, apply common sense and limit as much as possible the publications in which other people appear. “We must not be naive. If applications or platforms arise that allow us the animation of photos, the rejuvenation of our faces or compare ourselves with our grandparents, it is because business can be generated with it, ”he indicates.
The lawyer maintains that the famous challenges in which the users to share photographs with certain characteristics "may hide behind the need for certain companies to nurture their databases and image banks to improve their algorithms." Virals such as the # 10yearschallenge challenge, which consisted of sharing a photograph from a decade ago along with a current one on social networks, sparked some controversy over the possibility that the images could be used to train facial recognition systems.
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