La llamada “personalidad pretérita”: Datos personales de las personas fallecidas y protección post mortem de los derechos al honor, intimidad y propia imagen

Abstract

While death entails the end of the personality (art. 32 Civil Code), the legislature provided that, beyond the time limit of existence of its holder, fit the post mortem protection of certain extrapatrimonial rights of the same in order to respect due the deceased (his fame, good name, reputation and personal and social estimate), which is what the doctrine comes denominating, in graphic expression, the “protection of the bygone personality”. Apart from the classic criminal protection of the memory of the dead, in the civil plane the protection of extinct personality is regulated, mainly, in the LO 1/1982 of civil protection of the rights to honor, privacy personal and family and reputation, where legitimacy is granted to certain subjects to defend those rights of personality injured after the death of his former owner (arts. 4-5). From a different perspective, and configured the honor, privacy and self-image as fundamental rights (art. 18 CE), in addition to civil protection -after an important evolution of constitutional doctrine on this point- there is the protection reinforced, through the amparo action, of the dignity of the deceased (art. 10 CE). In another order of things -not to mention that the LO 2/1984 allows the heirs of the injured party mentioned in the information disseminated timely exercise the right of correction, and that in the field of intellectual property is contemplated the defense post mortem auctoris of some of the powers within the moral copyright (arts. 15-16 TRLPI)-, the legislation regulating patient autonomy enables, with certain conditions and limitations, third party -ambiguously concretized by the precept- access to history clinic deceased (art. 18.4 Law 41/2002); a possibility which is revealed as legal exception to the general exclusion of data relating to deceased persons from the scope of the rules of protection of personal data (art. 1 LO 15/1999 and art. 2.4 RD 1720/2007), as the Spanish Data Protection Agency has declared repeatedly. KEY WORDS: personal dignity and protection of the bygone personality; civil and constitutional defense of the rights to honor, privacy and self-image injured after the death of its owner; personal data of dead people; access to medical history of a deceased; moral copyright and protection post mortem auctoris.