„Meanwhile, the second brother journeyed to his own home, where he lived alone. Here, he took out the stone which had the power to recall the dead and turned it thrice in his hand. To his amazement and delight, the figure of the girl he had once hoped to marry, before her untimely death, appeared at once before him. Yet she was sad and cold, separated from him as though by a veil. Though she had returned to the mortal world, she did not truly belong there, and suffered. Finally, the second brother, driven mad by hopeless longing, killed himself, so as to truly join her. And so, Death took the second brother for his own.” – J. K. Rowling, Harry Potter and the Deathly Hallows

We are all familiar with this part of the short story in J. K. Rowling’s Harry Potter series, intended to warn audiences about the dangers of wishing to bring back the dead. Across various cultures, several folktales exist with the same premise and ultimately, the same message: to let our dead rest. However, humanity has never been proficient in the art of letting go. Therefore, we find ourselves in quite a conundrum, where we are now able to ’bring back’ our dead loved ones – or at least, an artificial version of them.

AI technology’s power and impact is evidenced by the fact that it can already recreate the voice, looks and behaviour of our loved ones. In fact, it has already caused a negative impact, seen the recent suicide of an American teen boy, due to his unhealthy relationship with an AI character. Using a blend of tools like ChatGPT and the image generator Midjourney, coupled with photos and voice recordings of the departed, funeral homes can now offer services, which might even include somebody giving an eulogy in their own funeral.

On the one hand, it offers us the chance to properly grieve, by ’talking to’ the departed. It is not unusual for people to attempt to maintain a relationship with those who have passed on anyway. However, there are certain psychological drawbacks as well, as this attempt at continuing a relationship with someone who has passed on may elicit anxiety or even lead to maladaptive behaviours such as alcoholism. Despite all these risks to the living, just like the second brother in J. K. Rowling’s „The Tale of the Three Brothers”, humans cannot resist trying to recall the dead.

This is evidenced by the fact that Chatbots for Mental Health and Therapy Market will supposedly be worth $1.71 Bn by 2031. There are numerous commercial grief tech companies, which cater to a desired service, but ultimately lead to a serious negative mental health impact in the long run. Digital ghosts can make a person dependent on them, therefore they should ideally be used only as temporary aid to mourning. Even those who take initial comfort from a ‘deadbot’ may get drained by daily interactions, causing an “overwhelming emotional weight”. Because ghost-bots could also give bad advice to someone grieving, or otherwise harm them emotionally or mentally, transparency, human oversight and building reliable and ethical AI systems is more crucial than ever.

However, the considerations of a digital afterlife extend beyond the scope of psychology, economics and ethics, right into the field of law: as this new opportunity raises several legal questions, such as who has access to the data of the departed, how the providers of these services should be regulated, and many more issues.

As a European constitutional lawyer, I would like to turn this particular conversation towards European values, specifically how the legal approach to dignity – the basis of fundamental rights – might evolve seeing that we are approaching a time when dignity of the deceased could take on a new meaning.

Human dignity is inviolable, it must be respected and protected. Dignity as a concept itself encompasses a basic worth or status that purportedly belongs to all persons equally. It can be described as the core of the status of a human being, as it is inherent to all of us. As an overarching principle in the international documents, and with particularly deep roots in Christian tradition,[1] dignity is the central concept of the European approach to human rights. While we may not know whether there is life after death in a spiritual sense, I assert that this concept of dignity should not stop just because a person has passed on. In fact, it is vital to preserve their dignity even after they cannot speak for themselves anymore.

The two core concepts to consider within posthumous dignity are value and respect, which should be awarded to the departed not for their own benefit – as dead people cannot have rights – but for their family members and other loved ones, who hold onto their memory. Therefore, posthumous dignity is tied to living relatives. However, we should not necessarily consider it a right in itself: rather, it should be seen as duties of respect and protection toward the dead. Does this required notion of respect, protection and value of the dead encompass heirs’ legally recognizable rights against inaccurate portrayals of their deceased relatives? If so, can AI’s developers or the companies providing ’deadbots’ be liable for inaccurate portrayal or aforementioned psychological damage caused?

To give a basis for a deceased person’s dignity and handling, there are three approaches. However, most links between human dignity and the dead would require demanding metaphysical backing. Indeed, the attitude towards this issue differs significantly in common law tradition (in which framework the publication of defamatory material about a deceased person does not give rise to a cause of action by relatives or an organization having the task of protecting the deceased’s reputation), and the continental approach (in its landmark Mephisto decision the Bundesverfassungsgericht established a right to posthumous personality protections based on human dignity).

Ultimately, even when they die, people do not become mere things, so we have certain moral obligations towards the dead, because death does not necessarily imply that people cease to exist in a morally relevant way.

Developing a deadbot that can replicate someone’s personality requires great amounts of personal information, which includes highly sensitive traits. To use the personal data of a departed person to train an AI would ideally include the consent of said person, so that their dignity is best protected. However, there are still debates regarding the limits of consent. And even if the dead cannot be harmed and have previously consented to the creation of a deadbot replica of them, ethical questions still arise, such as the deepfake or deadbot damaging this person’s honour, reputation or dignity, which has a great effect on living loved ones.

The use of deadbots to grieve is especially dangerous to young children, whose terminally ill caretakers might think it a good idea to leave an artificial version of themselves behind once they are gone. In these cases, special attention should be given to the emotional safety and adequate development of children going through the trauma of losing a loved one. AI deadbots’ interactive features should probably be limited to adults only. Ultimately, the rights of data donors and those who interact with AI afterlife services should be safeguarded to the highest extent.

To preserve the dignity of the dead, as well as the psychological wellbeing of the living, best-practices should be created. As a possible solution to the problem, it has been suggested to introduce sensitive ways to “retire” deadbots, be very transparent about how they operate and the limitations of any artificial systems, and ensure the mutual consent of both data donors and users.

While the second brother from the story ultimately met his demise due to bringing back a hollow version of his love, we should not be subjected to the same fate. Careful handling of new artificial intelligence technologies, keeping humans at the forefront of services and a commitment to ethical development, as well as adequate legal instruments to combat corporate greed might just be the ingredients required to turn that magic stone thrice and ’bring back’ a loved one for a short time, before saying goodbye to them and letting them rest with their dignity intact, forever.

[1] The good Samaritan recognized the dignity in the other and cared for his life. – Luke 10:25-37

Jesus broke with societal and religious customs to honor the dignity of the Samaritan woman. – John 4:1-42

Mónika Mercz JD is a visiting researcher at The George Washington University in Washington D.C. She is completing her PhD studies in Law and Political Sciences at the Doctoral School of the Károli Gáspár University of the Reformed Church in Hungary, where her research topic examines how constitutional identity manifests in essential state functions of the Member States of the European Union. A graduate of the University of Miskolc with a degree in law, she specialized as an English legal translator, and holds a degree in AI and Law from the University of Lisbon. Mónika has over fifty scientific publications, and has attended numerous international conferences. She is currently working for the Public Law Center of Mathias Corvinus Collegium, and has previously worked for The National Authority for Data Protection and Freedom of Information, The Office of the National Assembly and the Miskolc Regional Court. She was previously the Secretary General of ELSA Miskolc (2020-2022), and is currently a member of Aurum Foundation, YATA Hungary, and the international director of Central European Lawyers Initiative.

She is a founding editor of Constitutional Discourse, leading the Privacy & Data Protection column.