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By the end of September, in an episode of Lex Fridman’s podcast, Zuckerberg pointed out that he might be taking into consideration creating avatars of deceased loved ones, using AI and Virtual Reality (VR) technologies. What other similar practices are there on the market and how far the law has managed to protect such a phenomenon? Answers may be deceiving. 

The former associate justice of the Supreme Court of the United States, Joseph P. Bradley, said that ‘Law is […] the essence of civil society’. Or, given the fact that Meta aims to build ‘innovative new ways to help people feel closer to each other’, these social online connections must likewise be governed by rules. Hence, concepts such as ‘digital death’ have gained legislators’ interest. 

OpenAI, Chat GPT-3 and Samantha 

Zuckerberg wasn’t the first one contemplating this idea. In fact, back in July 2021, the San Francisco Chronicle released a special-edition article relating the story of Jason Rohrer, a 42-year-old programmer. He was inspired by a virtual assistant powered by AI, named Samantha, who develops a romantic relationship with Theodore, the main character in movie ‘Her’ (2013). Then, he started experimenting language models like GPT-2 and GPT-3. These were released by OpenAI, a for-profit company since 2019, though initially, in 2015, it was non-profit and aimed to ensure that AI would advantageously help humanity.

Rhorer managed to create an AI system (Project December) prone to chat-like conversations, powered by a GPT-3 cloud-based API, via a beta-testing credential. He named it Samantha. The mechanism involved the possibility of creating one’s personalised chatbot, using specific psychological traits of the soon-to-be-simulated real person. Yet, grief-stricken Joshua used it to talk with a simulation of his, back-then, already dead fiancée.

Sorrowfully, even though OpenAI acknowledged the ‘positive experiences’ users have had, they forced Rohrer into applying numerous conditions, among which safety mechanisms in order to maintain a responsible and restricted-sensitive-topic use. Rohrer was shortly notified that his access to GPT-3 API would end due to his non-compliance with previously mentioned measures.  

Somnium Space, a metaverse able to provide a never-ending story

Somnium Space is a Czech ‘open VR platform built on blockchain’. They provide a ‘Live Forever’ option, allowing users to ‘store their movements and conversations as data, then duplicate them to make an avatar that moves, talks and sounds exactly like them’ which can live long after they’re gone so that users will still be able to talk to their loved ones. However, this decentralised-tech company, unlike Meta, doesn’t ‘care’ about users’ identity so it does not have a data-selling-to-advertisers business model. While a richer data collection about a user will provide more accuracy, people will be able to deactivate or ask to delete, at any time, already stored data. For instance, a user’s recent death implied a property-right-data transfer to one of his friends who decided to build a memorial space for him in the metaverse. 

The computer-generated imagery (CGI) and the ethics of bringing back actors from the dead 

In 2022, thirteen dead celebrities are still producing a fortune, with a total revenue of 1.6 billion dollars, according to Forbes Magazine. Also, numerous actors like Audrey Hepburn, Christopher Reeve, Paul Walker or Carrie Fisher had on-screen appearances following their deaths. 

Unfortunately, when it comes to this practice, there is a non-coherent or even non-existent world-wide legislation about the ethical implications, privacy, or consent. For instance, California has protected celebrities’ right of publicity under state law since 1985, which lasts and is transferred to the estate for 70 years after the death of such a personality. 

Other forms of protection, such as US trademark and unfair competition law, are to be considered when sales of services or products associated with their name and figure are involved. Whereas in Europe, German courts have ruled in favour of a ‘post-mortem’ protection of this right limited to 10 years (Marlene Dietrich Case BGH 1 ZR 49/97). French jurisdictions however, in spite of a general acknowledgement of commercial exploitation of one’s image and its ‘personality right’ nature ending upon one’s death, have also accepted a descendibility of this right when patrimonial aspects are at stake. 

The 117th Notaries’ Congress in France: what about after-death data protection?

French legislation appears to be the most protective instrument in terms of personal data, let alone European legal instruments on the same matter. However, during this Congress, notaries brought forward a set of propositions, including a better regulation of the right to a ‘digital death’. The French Act on Information Technology, Data Files and Civil Liberties, amended by the European GDPR, provides that ‘any person can define guidelines relating to conservation, erasure and communication of their personal data after their death’ [see Article 85].

For instance, if a person passes away, Facebook allows one to choose a legacy contact to look after a ‘memorialised main profile or have an account permanently deleted’. However, according to the Congress’ point of view, the aforementioned texts are not clear enough and need a revision, so as to allow the heirs, regardless of the absence of the deceased’s clear directives, to exercise rights to rectification, restriction of processing and data portability

It is worth saying that, by way of conclusion, actual legislations do not provide sufficient and appropriate guarantees ensuring a safe and ethical use of one’s image, especially in the field of new technologies such as AI. 

Roxana VENER

Master 2 Cyberjustice – Promotion 2023/2024


Project December

He couldn’t get over his fiancee’s death. So he brought her back as an A.I. chatbot

A developer built an AI chatbot using GPT-3 that helped a man speak again to his late fiancée. OpenAI shut it down

Company Information, Culture, and Principles | About Meta

Somnium Space VR – YouTube

Dans le métavers, Somnium Space promet la vie éternelle à ses utilisateurs

“Delebs” and Postmortem Right of Publicity

CLASSEMENT | Ces célébrités nous ont quittés, et pourtant elles continuent à engranger des millions ! – Forbes France

Michael Jackson – Slave To The Rhythm

117e Congres – Livret des propositions (Notraires de France)

A propos de Roxana VENER

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