[author]CHEN Xiyi

[content]

Chen Xiyi | Media and relational regulation of "digital deceased" technology

*Author Chen Xiyi

Doctor of Law from Koguan School of Law, Shanghai Jiao Tong University

Assistant Researcher at the China Institute for Socio-Legal Studies of Shanghai Jiao Tong University

Abstract: The technology of "digital deceased" has impacted the legal norms of the present world, causing unique difficulties in mourning order and regulation. Existing research proposes three regulatory schemes: determining the ownership of "digital relics"; Introduce the system of autonomy of will before death; Pre limit the use of technology. These three schemes objectify technology while ignoring its constructive role in social order, and due to their individualistic tendencies, they pay insufficient attention to the interaction between the living and the dead, as well as the relationships between the living. The technology of "digital deceased" has a media nature that transcends the dichotomy of subject and object. Its legitimacy is not based on the continuation of the deceased's personal interests or the satisfaction of the living's emotional interests, but on the spiritual interest of "maintaining connections" based on relationships rather than individuals. Based on the above technical positioning and legal evidence, "maintaining connectivity" should be taken as the principle of technical supervision, distinguishing the institutional arrangements under three different relationship scenarios: "private mourning", "collective mourning in shared spaces", and "public mourning after individual actions are made public", and transforming from a system of personal autonomy before death to a system of multi-party negotiation.

Question raised: Relationship order in the application of "digital deceased" technology

The so-called "digital deceased" technology (often referred to as "griefbots," "ghostbots," or "deathbots" in the European and American world) refers to the technical presentation that uses data about the deceased to imitate their appearance, voice, dialogue style, behavior, and even cognitive habits. It is not an independent technology, but a concrete application composed of multiple digital technologies. In China, this type of technology became popular due to a certain online user creating a "virtual digital person" imitating their grandmother, and sparked widespread attention due to the incident of a celebrity creating a "digital daughter". This technology was initially positively evaluated by news reports as having emotional healing functions. However, as netizens create dynamic portraits of deceased public figures, some relatives of the deceased have expressed that they have suffered secondary emotional harm as a result, and the veil of warmth in technology has been pierced, raising concerns about the risks involved.

To explore this technology, it is necessary to examine the unique legal issues and existing responses to institutional norms in order to reflect on and seek breakthroughs in areas where legal power is insufficient. The commercial use of personal portraits, voices, personal information, etc. without consent, as well as the use of technologies such as "deep synthesis" to vilify and defile personal images, fabricate and distort facts, and other behaviors that infringe on personal rights and interests, are already explicitly prohibited by law and have existed before the emergence of "digital deceased" technology, which is not a unique problem. The uniqueness of this technology lies in its impact on the ethics of life and death and the culture of mourning. However, current legal norms have a contemporary nature, and discussions on rights and obligations are often based on natural persons. Relevant norms on personal information processing also mainly revolve around natural persons. Therefore, an effective response to the technical dispute urgently requires a re examination of the legal relationship between the living and the deceased, as well as between the living, in order to adjust conflicts and coordinate the interests of multiple parties.

Existing research in this area often revolves around two extreme situations: "the warm practice of close relatives expressing grief" and "the use of public figures' 'digital deceased' for profit", ignoring the intermediate zone of the application of this technology. This is not conducive to conducting appropriate evaluations of the technology, nor is it conducive to responding to complex situations that are truly controversial in practice.

Firstly, the use of this technology by close relatives is the origin of the technology and a typical scenario of its practice. The conflict between the emotional interests of close relatives and the subjective interests of the deceased that it triggers urgently needs to be addressed. Article 994 of the Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code") stipulates that if the privacy and other personal rights and interests of the deceased are infringed upon, their spouse, children, parents, and other close relatives have the right to request the perpetrator to bear civil liability in accordance with the law. It can be seen that the current legal provisions in China present a value assumption of "kinship unity". However, the 'digital deceased' technology precisely reflects the tension within the relationships of relatives. In practice, close relatives have requested data holders to provide data that was not publicly disclosed before the death of the deceased, which has sparked controversy.

Secondly, apart from close relatives, other relatives, friends, and even strangers may express their condolences through the creation of "digital deceased", which is particularly common in cases where the deceased is a public figure and a large amount of their personal information has already been voluntarily or legally disclosed. Due to the fact that this technology cannot be directly classified as commercial or malicious use, how to evaluate and regulate it has become a challenge. The use of portraits that can be reasonably carried out without the consent of the portrait owner listed in Article 1020 of the Civil Code does not explicitly include the act of "digital mourning". However, from the perspective of legal interpretation, Article 1020 of the Civil Code includes non-commercial use such as personal learning and art appreciation, as well as the use to safeguard the legitimate rights and interests of portrait rights holders and public interests. There is a possibility of incorporating "digital mourning" into reasonable implementation behavior. Article 1036 of the Civil Code also reserves space for the reasonable handling of a natural person's publicly available information and the implementation of actions to safeguard the legitimate rights and interests or public interests of the natural person. Article 998 of the Civil Code also requires that when determining civil liability for infringement of personality rights, factors such as the purpose, method, and consequences of the act should be taken into account.

Again, the use of this technology by close relatives and non close relatives is not completely binary, but interwoven into a complex mourning network. Unlike traditional mourning models dominated by families, digital mourning further presents a decentralized spider web structure. The use and content of "digital deceased" technology are likely to be highly personalized and easily combined with other digital communication technologies to achieve widespread connection between the living, promoting mutual influence between different mourning actions, and families often cannot take the lead in the occurrence and evolution of the entire process in advance. Diversified expressions of mourning can easily cause confusion among technology users, and the issue of regulating "digital deceased" technology is actually a problem of regulating the order of relationships in the mourning network.

In view of this, this article focuses on the relationship order dilemma and regulation that arise during the process of using "digital deceased" technology to carry out mourning activities. Specifically, this article first reviews three regulatory schemes proposed in existing research around the "digital deceased" technology, and reflects on and discusses their limitations; Secondly, elaborate on the characteristics of the "digital deceased" technology and examine the legitimacy basis for its application, examining the interaction between the rights of the living and the deceased; Then, from the perspective of legal evidence, the author elaborates on the proposed regulatory plan and breaks through the limitations of existing plans one by one; The final section is a brief summary.

1. Three existing regulatory schemes and their reflection

Existing research has focused on the order dilemma caused by the "digital deceased" technology, and has proposed three regulatory solutions accordingly: the first regulatory solution is to determine the ownership of "digital relics", with particular emphasis on making a choice between the personality rights of the deceased and the inheritance rights of the living; The second regulatory solution is to improve the user service agreement or introduce the system of autonomy of will before death by referring to the applicable pre will and testamentary systems; The third regulatory solution is to pre restrict the use of technology, such as limiting "digital deceased" technology to a medical method. In the current legislation of our country, corresponding institutional support can also be found for the three regulatory schemes mentioned above.

1.1 Determine the ownership of 'digital relics'

The so-called 'digital remains' refer to a series of digital traces generated actively or passively by the deceased during their lifetime due to the use of digital platforms. This is the prerequisite and key to using the "digital deceased" technology. The existing research on this topic mainly revolves around the binary framework of the personality rights of the deceased and the inheritance rights of relatives. By exploring the attributes of "digital relics", it is determined whether they are inheritable objects, thereby enabling heirs to have exclusive control over them. The party advocating for the protection of the personality rights of the deceased believes that the increasingly mature information mining and processing technologies enable the extraction of a large amount of information related to personality characteristics from digital relics. Therefore, digital relics with personality attributes cannot be used as inheritable objects. Supporters of the theory of inheritance argue that digital relics still have a certain degree of materiality and objectiveness, which can be compared to tangible objects in the offline world (such as letters and other relics of the deceased before their death), in order to make inheritance arrangements. This not only ensures the continuity of legal practice, but also conforms to human nature.

The above discussion has two limitations. Firstly, digital relics already have both personality and property elements, and it is biased to choose one to identify the attributes of digital relics and determine their ownership. The existing discussions may seem to start from the issue of attributes, but in reality, there is a potential tendency towards the protection of the deceased and the living, and there are also assumptions about whether the inheritor and the deceased can be regarded as a community of interests. This directly affects researchers' attitudes towards the inheritance rights of digital heritage, and in turn affects the characterization of the attributes of digital heritage. Secondly, the above discussion mainly revolves around the deceased and their close relatives. A further question is whether other relatives and friends of the deceased, or even groups with distant relationships with the deceased, have the right to use digital relics to create "digital deceased"? The above regulatory framework either lacks response to this, or precisely presupposes exclusive control over relatives through the framework of "inheritance rights". This means that other entities must obtain the consent of their heirs in order to create a 'digital deceased'. In practice, some technology service companies advocate further limiting technology users to the immediate family members of the deceased to prevent legal disputes. However, 'granting exclusive control to relatives' is only an intuitive consideration, neither self-evident nor legally supported, and requires further verification.

1.2 Introduce the system of autonomy of will before death

Pre determining the deceased's will before death has become a common strategy for coordinating power games and facing technological risks, as well as a manifestation of respecting personality. There are many studies advocating for the improvement of service agreements on digital platforms, or the adoption of pre death wills and wills, so that the deceased can make arrangements in advance regarding whether to allow the creation of their own "digital deceased" and specific requirements. HereAfterAI is a digital platform that allows people to create their own "digital deceased" in advance. The platform inspires users to answer questions about various stages of life in a storytelling manner within the system, enabling the transformation of different parts of users' personal characteristics and relationships into code. Afterwards, the dialogue robot will obtain these answers and receive training on various questioning methods. There are also artificial intelligence companies in our country planning to embed autonomous design of the deceased's will before death, and even allow users to directly participate in the production process of "digital deceased" to achieve true spiritual end-of-life care.

However, this solution ignores the differences between the consent of the deceased used in "digital deceased" technology and the general meaning of living wills, wills, and service agreements. A 'living will' is used to indicate whether an individual needs or does not require certain medical care in the final stage or near death of an incurable injury, and it is still an arrangement for the individual's living condition during their lifetime. A will is mainly used to designate a guardian, determine whether to agree to organ donation, and dispose of property, presenting as a commitment to one's own obligations or arrangements for one's body and property after death. The arrangement of the "digital deceased" by the deceased during their lifetime is not related to their living conditions and no longer has a perceptible impact on the deceased, thus distinguishing it from the system of advance directives. Furthermore, it is not merely an arrangement concerning individual rights or obligations, and therefore cannot be simply incorporated into the institutional framework of service agreements and wills. In other words, the premise of autonomy of meaning is the separability of individual and other interests, and there is a large amount of social information in digital relics, and the arrangement of data usage involves the interests of social counterparts. At the same time, the specific presentation of the "digital deceased" will also affect the mourning methods, cognition, and emotions of the living, as well as the order of relationships between the living. Therefore, it is not appropriate to be determined solely by the deceased's will during their lifetime. The introduction of the system of autonomy of will before death may seem sufficient to respond to diverse situations, but it is still insufficient when facing specific issues with "digital deceased" technology.

1.3 Pre restrict the use of technology

This regulatory plan directly revolves around the specific use of this technology, controlling risks by pre limiting its use. The risks of "digital deceased" technology are mainly summarized as follows: first, emotional addiction and secondary harm. The use of such technology may either lead users to become addicted to interacting with the "digital deceased" and unable to accept the fact of death, or may exacerbate the pain of the living due to exposure to the digital image of the deceased. Secondly, the monetization and instrumentalization of emotional relationships. The purpose of using this technology may shift from the original intention of "expressing grief" around the deceased to emotional satisfaction centered on the living. As Sherry Turkle has proposed, "When we treat machines almost as we treat humans, we also develop the habit of treating humans as we treat machines." Given these risks, some studies advocate limiting the use of this technology to only as a medical treatment for mental illness; Limit the usage stage and frequency of this technology, only using it as a temporary tool for psychological state transition.

There are two points worth reflecting on in the above plan. Firstly, the technology practice that restricts the upstream movement is already derived from human needs, which is difficult to implement and has many drawbacks. The concept of 'digital deceased' is not only a utility based technology, but also carries emotional and cultural significance, responding to humanity's long-standing desire to break through the limitations of life and death. Therefore, it cannot be understood solely from a medical perspective. Secondly, high-intensity and close supervision of technology providers and users means pursuing specific regulatory outcomes based on predetermined technology functions, values, and risks. However, in practice, the "digital deceased" technology can indeed be applied to daily life scenarios and play a positive role in emotional comfort, without necessarily leading to emotional addiction and secondary harm. The unified standards may seem concise, but they are difficult to respond to changing situations and do not leave room for the initiative of the subject and the positive aspects of technology development and application, which prematurely hinders the possibility of technology benefiting society.

In summary, the three regulatory schemes mentioned above cover the prerequisites and specific practices of technology application, attempting to strike a balance between the rights of the deceased and the living. These solutions may seem comprehensive, but they share the following common limitations: firstly, the objectification and objectification of technology. Whether attempting to qualitatively characterize digital relics within the binary framework of "personality property", pre arranging through individual autonomy of will, or pre limiting the use of technology, all presuppose that technology has a certain static attribute and passivity towards human subjects, ignoring the mutual influence and dynamic process between technology and humans. Secondly, the individualistic thinking path. As mentioned earlier, the "digital deceased" technology contains a large number of relational elements. Digital relics contain social information, and the creation of 'digital deceased' implies the presentation of the deceased's personality towards the living and the mourning of the living towards the deceased, both of which are essentially a form of relational interaction. This kind of 'relationship' is irretrievable and cannot be understood as a trade-off or simple accumulation between individual rights and interests. Therefore, the regulatory path of individual orientation will inevitably encounter repeated setbacks. However, the emphasis on individual autonomy in existing schemes, as well as the choice between the personality rights of the deceased and the inheritance rights of the living, implies a lack of attention to the "relationship" between the living and the deceased. In addition, the scope of existing research is mostly limited to the relationship between the deceased and their close relatives, without fully exploring the diverse subjects and their interactive relationships involved in the use of this technology.

In view of this, we need to make the following three adjustments: first, reposition the role of "digital deceased" technology in society, break away from a regulatory framework that separates subject and object, and a tool based understanding of technology; Secondly, examining the legitimacy of the "digital deceased" technology from the perspective of relational ethics, and providing legal evidence for this technology, will provide guidance for the coordination of rights and obligations among diverse subjects; Thirdly, based on the aforementioned technological positioning and value framework, more effective regulatory measures should be proposed accordingly.

2. The Mediationality of "Digital Dead" Technology and Its Legal Evidence

Not understanding the "digital deceased" technology from an objectified perspective does not mean that the technology cannot be spoken of and explored. The key to the problem lies in a more appropriate understanding of its role and function in social interaction, and by examining its legitimacy foundation, providing a value framework for technical regulation.

2.1 Transcending the binary of subject and object: the media nature of "digital deceased" technology

In the absence of prior arrangements by the deceased, the "digital deceased" actually presents the image of the deceased in the cognition of the living, and therefore is an expression of mourning and emotional and cognitive projection of the living. When the "digital deceased" technology is combined with other digital communication technologies, the emotions and cognition of the living will be spread on a wider social scale, thereby achieving memory sharing. If the deceased makes prior arrangements, the 'digital deceased' can also become the deceased's autonomous information management, a spontaneous personality presentation of the deceased and emotional expression towards the living. From the perspectives of both the living and the deceased, the "digital deceased" technology has a "medium" nature.

Understanding 'digital deceased' technology as a medium for expressing and disseminating information and emotions means breaking free from the binary of subject and object. Firstly, the 'digital deceased' is not an object, nor a tool used to meet needs. It does not function with its fixed attributes and is unilaterally accessed by humans, but rather constructs a framework for human action, influencing the patterns of information transmission and emotional expression, as well as the relationship networks formed based on these patterns. Rather than saying that we 'use' media, it is more appropriate to say that we 'rely' on media. The "digital deceased" technology enables the image of the deceased to no longer remain only in the hearts of the living, but to be presented as a visual, audible, and even interactive image, thus weaving more living people and even strangers into the mourning network. Mourning has become a public event that can be initiated at any time and with a wide range of participants, without being limited by time, space, or social relationships. This process may both consolidate consensus and exacerbate relationship conflicts. Secondly, the 'digital deceased' themselves are not interactive subjects. Indeed, the 'digital deceased' is an imitative representation of the deceased's specific personality, transforming the deceased and their personality elements from an 'absent' presence (i.e. reminding the living of the fact that the deceased has passed away through their own 'absence' and its impact on their lives, and allowing the living to continue to feel the impact of death on themselves) to a physical sense of presence. Therefore, the technology of "digital deceased" is often endowed with a mysterious color that transcends the boundaries of life and death, related to "digital immortality" and "digital embodiment". However, the actual purpose of this technology is not to replace the deceased with "digital deceased" and establish a direct relationship between the living and the "digital deceased", but to achieve a connection between the living and the deceased (which will be described in detail later). Of course, the awareness of this connection is not symmetrical. The living can perceive this, while the deceased cannot continue to be conscious of it. By understanding 'digital deceased' technology as a medium, we can fully consider it as an actor in social interactions and recognize its impact on us. At the same time, we have not eliminated the difference between this actor and the human subject, that is, it is not as aware of its own and each other's actions as humans.

2.2 Legal evidence of the application of "digital deceased" technology

The intermediary nature of "digital deceased" technology means that the key to evaluating the value of technology lies not in its objective attributes or how it affects individuals, but in how it affects interactive relationships. Specifically in the legal context, that is, how it affects the interaction of rights between the living and between the living and the deceased. When 'digital deceased' can serve as both a tribute expression for the living and a representation of the deceased's personality, the controversial issue of the rights of the living and the deceased has been pushed to the forefront. The argument for the legitimacy of the "digital deceased" technology prompts us to re-examine this issue; The grasp of technological media guides us to seek new evidential ideas through a relational perspective. This method of proof is based on another interpretation of the legal system, which clarifies the value foundation of technological application while maintaining the coherence of the law.

When it comes to the rights and interests of the living and the deceased, Article 994 of China's Civil Code mainly focuses on the rights and interests of the living and their close relatives, presenting an effort to provide "dual protection" for the rights and interests of the living and the deceased. However, in theory and practice, there is still a tendency to adopt the "indirect protection theory", which holds that the deceased has lost the ability to perceive harm to interests and cannot become a subject of rights. The essence of protecting the personal rights and interests of the deceased by law is to safeguard the rights and interests of close relatives, "is still widely accepted in academia. On the extension line of this argument, the satisfaction of individual needs of close relatives naturally becomes the justification for the legitimacy of the "digital deceased" technology, and correspondingly makes "close relative authorization" a prerequisite for the legitimacy of others' use behavior. As mentioned earlier, this is also the tendency of some "digital deceased" technology regulation schemes, which determine the ownership of "digital relics" through the inheritance rights framework, providing a legal basis for the institutional scheme of "near relative authorization".

However, what cannot be explained by the above argument is that if the ability to perceive harm is taken as a prerequisite for protecting rights and interests, and the rights of the living are considered to have absolute priority, then why does the law often prioritize respecting the will of the deceased before making prior arrangements before their death. Taking Article 49 of China's Personal Information Protection Law as an example, although this provision aims to protect the legitimate and legitimate interests of the deceased, the interests of the deceased are still inferior to the arrangements made before their death. At this time, the personality of the deceased has priority and cannot be considered based on the protection of the rights and interests of close relatives. In other words, based solely on whether the deceased has made arrangements in advance or not, the legal interests protected by the system are different, indicating a logical break in the discussion of the rights of the living and the deceased. The assumption of "family unity" has become a way to bridge the gap, but in reality, the interests of the deceased and their families may not necessarily be aligned. In the context of "digital deceased" technology, it presents not only the personality elements of the deceased, but also an organic combination of multiple personality elements. This not only greatly satisfies the emotional needs of the living, but also greatly expands the ability of the deceased to manage their own personality, making the potential tension between the interests of the living and the deceased particularly significant. The above assumptions are difficult to prove, and new ways of proving them urgently need to be explored.

The crux of the problem lies in the fact that legislation has keenly recognized that "the protection of personality rights should not end with death" as a social consensus, but it is difficult to find an appropriate position for it in the legal system that emphasizes secularism. The legal system as a whole relies on the boundary between life and death in the physical sense of time, as evidenced by the commonly used "indirect protection theory" in academia to interpret Article 994 of China's Civil Code. Correspondingly, the interpretation and argumentation of the law often discuss this social value in the form of discussing the object, breaking it down into personal interests such as the name, portrait, and privacy of the deceased, as well as emotional interests of close relatives. It insists on finding a rights holder to undertake the protection of interests, and then decomposing this protection of interests into the realization of certain individual rights. When the deceased has made clear arrangements before their death, they become the beneficiaries (while still alive), and conversely, close relatives become beneficiaries. This also explains why existing research on "digital deceased" technology is difficult to bypass the framework of the ownership issue of "digital relics".

This article argues that what the law aims to protect is people's basic desire to maintain connections. In reality, there is no simple separation between the living and the dead due to the fact of death. Not only do the living desire to maintain connection with each other, but the living also desire to maintain connection with the deceased, and are concerned about their survival status in the future and the impact they have on it. Social psychologists summarize it as "continuing bonds". One possible doubt about this spiritual interest is that the fact of death also declares the termination of the relationship between the living and the deceased, and the so-called "maintenance of connection" is only a subjective fiction unilaterally created by the living. This article argues that such questioning still approaches society from a physical perspective. Human beings exist in a world of shared meaning, where the deceased is no longer a tangible and visible entity, and the connection between the living and the deceased is not a tangible entity. However, it still "exists" in this world of meaning constructed by human interpretation, and is truly felt and spoken by people. Through communication, people can achieve mutual understanding of this feeling. It is this mutual understanding that makes the understanding of "connection" no longer purely subjective imagination, but a part of the world of meaning and a way of existence for people. In addition, unlike purely fictional relationships, this kind of connection and emotional continuity are supported by the history of relationships, that is, built on a series of specific past processes of relationship construction, development, and adjustment. What institutional norms should guarantee is precisely the order of this meaningful world rather than the physical world.

The basic unit for the existence of such spiritual interests is "relationship", which relies on the interactive network formed by multiple subjects. We cannot analogize it to some objectified object that can be attributed to the subject, and then assume that either the deceased or the living is the carrier of this spiritual interest. In addition, this spiritual benefit exists over a continuous intergenerational period, thus having transcendence compared to the physical time in which an individual exists. At the same time, the specific realization of this spiritual benefit still depends on the specific rights and obligations of each generation, thus possessing the secular characteristics of the legal system. Specifically regarding the issue of "digital deceased" technology, the legitimacy of using this technology does not stem from satisfying the emotional needs of the living, nor does it lie in the continuation of the deceased's personality rights. Rather, it is a way of maintaining connection that guarantees a spiritual benefit that can only be generated through interaction and cannot be attributed to a specific individual, and is pursued jointly by social groups. This also aligns with the media nature of technology.

2.3 Coordination of the rights and interests of the living and the deceased under the concept of "linking interests"

The proven solution of "linking interests" has significant advantages. It not only provides a coherent logic for the current legal system, but also provides guidance for the sequence of unclear rights and interests of the living and the dead. This ensures that the logical extension of the existing system provides direction for the regulation of "digital deceased" technology.

On the one hand, the current legal system grants close relatives the right to claim damages based on the personality elements of the deceased (such as name, portrait, reputation, honor, privacy, body, etc.), not because the surviving family has inherited the personality elements of the deceased and has the corresponding right to control them, nor is it to protect the personal emotional interests of the surviving family, but to safeguard the interests of the connection. Therefore, it cannot be inferred from the current legal system that the surviving family has exclusive control over the use of "digital deceased" technology. Survivors shall not demand civil liability from the perpetrator solely for the production and dissemination of "digital deceased" by others, and their prior consent is not a prerequisite or legitimate basis for the use of technology. Of course, the protection of joint interests does not prevent close relatives from claiming compensation for mental damages based on their own mental pain according to relevant judicial interpretations in China. However, the claims made due to damaged connections and the claims for compensation for mental damages belong to two categories with different legitimacy foundations. In addition, in order to obtain support for compensation for mental damages, it is necessary to prove the causal relationship between mental pain and the personality damage of the deceased, that is, to prove the closeness of the connection, which also breaks the assumption of "kinship unity" and supports the legal protection of the interests of the connection.

On the other hand, the desire to maintain connections exists among various types of relationships, not just within close relatives. The application of "digital deceased" technology should accommodate a wider range of diverse social relationships, both in practical and theoretical aspects, rather than simply excluding situations beyond close kinship relationships. This correspondingly means taking into account more complex social networks and coordinating conflicts of interest. The technology of "digital deceased" includes the presentation of the image of the deceased and the cognitive and emotional projection of the living, often involving both the subjective rights of the deceased and the emotional rights of the living. The former specifically includes the deceased's right to express their own will, exemplary personality rights (such as name and portrait), and spiritual personality rights (such as reputation and privacy). In the application of technology, the tension between the subjective rights of the deceased and the emotional rights of the living is manifested in the following four typical situations: (1) the deceased's pre death arrangements violate the emotional needs of the living; (2) The living need to use the name, portrait, voice, etc. of the deceased to create a "digital deceased", which conflicts with the standardized personality rights of the deceased; (3) To meet their emotional needs, the living need to explore the undisclosed data content of the deceased, which contradicts the spiritual personality rights of the deceased; (4) The mourning of multiple living individuals based on diverse emotions and cognition is difficult to gain mutual recognition.

Based on the interpretation of the current system, the will of the deceased during their lifetime is given absolute priority. The exemplary rights and interests of the deceased, the spiritual personality rights and interests, and the emotional interests of the living are in a dynamic balance and still need to be judged in conjunction with the context. For situations where the actions of multiple living individuals do not constitute infringement but still cause mutual disturbance, there is a lack of clear systems to achieve order coordination. We may take the connection of interests as a guide and re-examine the deep logic of the current system to respond to the conflict of rights in the "digital deceased" technology.

Firstly, the deceased's rights and interests during their lifetime should be respected, but individuals have no right to unilaterally adjust the way of connection. If the deceased's arrangements during their lifetime are intended to influence the subsequent relationship network of the living through their will, then the deceased's personal will during their lifetime should not have absolute priority. To avoid destructive effects on the living order, the will of all parties involved should be respected in accordance with the requirements of linking interests.

Secondly, based on the non-commercial purpose of mourning, as long as the use of the exemplary personality elements of the deceased does not simultaneously affect the spiritual personality rights of the deceased, such behavior as a way of maintaining connection does not violate the right to respect the exemplary personality rights and should be allowed.

Thirdly, in the context of "digital deceased" technology, the spiritual personality rights of the deceased should take priority over the emotional needs of the living, in order to respect and maintain the existing connection between the living and the deceased. Specifically, the deceased will exhibit different personal traits and convey different information in different relational interactions during their lifetime, which Erving Goffman referred to as "impression management". The purpose of safeguarding the rights and interests of spiritual personality, including privacy, is precisely to maintain such impression management, so as to distinguish between self presentation in different social relationships and contexts. Article 49 of China's Personal Information Protection Law seems to provide a broad space for close relatives to take action based on the phrase "the legitimate and legitimate interests of close relatives themselves". However, this understanding cannot adopt a simple logic of "all or nothing" without considering the importance and urgency of the interests of the surviving family. Therefore, living individuals, including close relatives, are not allowed to use undisclosed information from the deceased to create a "digital deceased" under the pretext of satisfying personal emotional needs.

Fourthly, different types and degrees of linkage interests should be respected, but hierarchical arrangements should be made based on the difference in linkage levels. This is also in line with the essence of Article 998 of China's Civil Code on dynamic system balance. Therefore, although the second point mentioned above generally allows the use of standardized personality elements for the deceased, the degree of protection for such behavior still varies to effectively regulate public order (which will be described in detail later).

In short, the protection of the interests of the alliance does not lead to the neglect of the personality of the deceased and the emotional rights of the living, but rather to unify the two under this value framework, so as to coordinate the tension between them. Based on the above legal evidence and interpretation, the legal system can still maintain coherence and be consistently applied to the domain of "digital deceased" technology, without encountering logical and value orientation bottlenecks. This is not a theoretical exercise, but a transformation of thinking patterns that will effectively change the specific arrangements of regulatory schemes.

3. Towards relational regulation of 'digital deceased' technology

Grasping the intermediary nature of "digital deceased" technology and its value positioning in maintaining and linking interests means fully realizing the construction and impact of technology on relationships, and focusing on the interactive relationships in the application of technology. The following text proposes three relational regulatory operation plans to improve existing plans: firstly, compared to restricting the application of "digital deceased" technology to medical scenarios in advance, this article advocates allowing its development in daily use, but should continue the intermediary positioning of technology, with "maintaining connectivity" as the principle of technology regulation; Secondly, compared to attempts to determine the ownership of "digital relics", the new regulatory scheme advocated in this article no longer relies on the binary framework of "subject object" dichotomy, but instead focuses on interpersonal interaction itself, distinguishing the three relational contexts of technology application, and making institutional arrangements based on the needs of relational order; Thirdly, compared to the system of autonomy of the deceased's will before death, this article advocates for joint negotiation rather than simply applying the system arrangements of digital platform service agreements, advance wills, and wills. It is precisely in the recognition of the value of couplets and the regulation of relationship order that "safeguarding human dignity" has effectively transformed from a framework guiding principle into the following specific regulatory practices.

3.1 Adhere to the principle of "maintaining connectivity" as a technical regulatory principle

This article does not advocate restricting the application of "digital deceased" technology to the medical field in advance, but proposes to provide development space for its daily use. This relies on the respect of humanistic technological ethics by technology developers and providers, ensuring that technology operates on the basis of connecting interests. There are three specific implications:

Firstly, the technology of 'digital deceased' should continue to serve as a medium. Given that technology companies such as Hangzhou Yushu Technology Co., Ltd. have proposed the patent concept of "digital immortality", it is particularly urgent to clarify the technological positioning. Although technology has irreversibly changed the way people express condolences and convey emotions, humans are not completely passive in accepting this construction, but can actively intervene and adjust the specific ways in which technology works. The technology of "digital deceased" certainly operates by imitating specific interactions, but the role of media does not require the "digital deceased" to be infinitely close to the characteristics of the deceased during their lifetime. Under the influence of emotions, even rough similarities can provide channels for emotional expression and building connections for the living. This article argues that the use of certain technologies should be limited in addressing the issue of 'digital deaths'. For example, technology developers should limit the use of deep learning in creating "digital deaths". Through deep learning, the "digital deceased" will continue to create personality traits through algorithms based on existing deceased data, and incorporate conversations with users into the learning scope, directly constructing its relationship history with users. Although this kind of personality reconstruction may not necessarily constitute infringement on the reputation, honor, and other aspects of the deceased in an insulting or defamatory manner, and the personality image it shapes may even be positive, it still violates the positioning of technology as a medium, and does not regard "maintaining connection" as its technical goal, but rather aims to achieve the replacement of relationships.

Secondly, ensure that the use of "digital deceased" technology is based on respecting established relationships with others. This means that "digital deceased" technology is not a service tool that meets the emotional needs of the living. Firstly, as mentioned earlier, living individuals, including close relatives, are not allowed to request digital remains that were not disclosed to the deceased during their lifetime in order to create a 'digital deceased'. Secondly, the living cannot demand that the "digital deceased" present an image that goes against the historical relationship between the two parties and the individual characteristics of the deceased before their death, based on their own emotional needs. For example, some users may request the "digital deceased" to express forgiveness for their past mistakes and make up for their inner regrets. The desire for forgiveness is understandable, but if such forgiveness clearly goes against the will of the deceased, then such behavior by the living should not be supported. This depends on the technology provider verifying the user's needs. When the user requests a specific expression from the "digital deceased", there should be evidence to prove that the deceased had made the same or similar expression before their death, to ensure that the technology application is only a presentation of the existing relationship history.

Thirdly, the "digital deceased" technology should respect the psychological laws of human beings facing death, making it beneficial for the living to acquire the ability to reconstruct their lives. As mentioned earlier, the passive application of this technology may form an "intrusive" memory, causing the living to suffer from aggravated pain due to exposure to the digital image of the deceased even if they are unwilling to recall, or resulting in technological dependence and inability to enter the stage of accepting death and rebuilding life. Therefore, the development and application of this technology should be based on a benign connection. The technology provider shall not attempt to increase the duration and frequency of technology usage through setting prompts or other means driven by commercialization. For example, it is not allowed to actively push relevant technologies to the living after obtaining their information, or to stimulate their use through email reminders or other means when they have reduced their use of the technology.

3.2 Three Relationship Scenarios and Institutional Arrangements of Technology Application

A small amount of research has keenly captured the complexity of the usage context of this technology, proposing to distinguish between public and private contexts, and advocating that if the "digital deceased" technology is used within a private scope, obtaining the consent of a close relative is sufficient; If this technology is applied to public platform circulation, the consent of all close relatives should be obtained. The advancement of this viewpoint compared to the general view lies in its alignment with the actual scenarios of technology use, without simply excluding other entities besides the survivors from the application of technology. But the problem is that the key to adjusting the order of relationships lies in understanding the interaction mode, which involves not only the number of relationship subjects, but also the relationship structure between subjects, the nature and strength of relationship bonds, and so on. Although it is possible to distinguish different levels of technology usage risks and set corresponding thresholds based on the number of authorizations granted by close relatives, reducing the problem of relationship interaction mode to a quantity issue lacks necessary logical reasoning.

This article believes that based on the differences in the relationship situations formed by the use of this technology by living individuals, the following three types can be summarized: first, private mourning. This is mainly reflected in individuals' use of "digital deceased" technology in non-public settings. At this point, the usage behaviors are independent and do not affect each other. Secondly, collective mourning in shared spaces. People organize themselves in an orderly manner in a common physical or digital space, sharing their knowledge and emotions towards the deceased, and can use a unified "digital deceased" image to mourn. Thirdly, public mourning after individual actions are made public. It mainly originates from the combination of "digital deceased" technology and other communication media. People create personalized "digital deceased" images based on their own emotions and cognition, and spread and share them through digital media to form a multi person mourning experience, which is different from the second scenario of relying on pre organization.

In private mourning, the living have the right to use the deceased's publicly available information or relational information generated from social interactions with the deceased (i.e. information that the deceased has already presented to the living) to create a 'digital deceased'. Since this mourning is conducted in a private space, it will not infringe upon the privacy and personal information of the deceased. At this point, the technology user creates a "digital deceased" for a special connection with the deceased, without the need for prior authorization from close relatives.

The collective mourning in shared spaces is actually a combination of new media and traditional mourning ceremonies. The time, space, participants, and forms of mourning are all organized, which ensures that the 'digital deceased' presents a cognitive and emotional consensus among mourning participants towards the deceased, helping to achieve a connection between all participants and the deceased. In practice, the funeral service industry has developed models such as "holographic mourning halls" and "digital memorial services", applying "digital deceased" to collective mourning. This model is legitimate. The producer and presentation of "digital dead" should be allowed as long as they are controlled within the pre organized shared space.

The most challenging scenario is the third type, where the image of the "digital deceased" is highly diversified based on differences in relationship types, and people may not necessarily share a set of cognition and emotions towards the deceased. The specific ways taken to maintain connection may also vary; This type of mourning activity is not organized, but dispersed and interconnected through digital dissemination; The dissemination of 'digital deceased' carries uncertainty, and the mourning mode and specific presentation of 'digital deceased' may lead to consensus or conflict. Regarding this, a one size fits all pre regulation, such as pre limiting the scope of groups that can produce "digital deceased" and requiring prior authorization from close relatives, lacks legitimate basis. This article believes that conflicts should be adjusted without pre limiting the scope of the production subject.

Generally speaking, people's intimate relationships exhibit a hierarchical pattern centered around the family and then extrapolated. Those who have a closer relationship with the deceased have a more comprehensive understanding and deeper emotions towards them. At this point, the "digital deceased" image it creates has a stronger foundation in historical relationships and is more in line with the presentation of the deceased's personality. On the contrary, the "digital deceased" created by people who are further away from the deceased, due to the lack of sufficient relationship history, is more of a projection of the subjective emotions of the technology users themselves, with weaker connections to interests, and infinitely tends to only satisfy personal emotional needs, and even objectify and instrumentalize the deceased. In other words, with the shift from the core to the periphery of the hierarchical pattern, a spectrum of interests has also been formed, from maintaining connections to only meeting personal emotional needs. The degree of protection for this should also be arranged in a differentiated manner.

Taking the production and dissemination of the "digital deceased" of deceased public figures proposed at the beginning of this article as an example, when the public mourning expressions of netizens have no profit purpose, and the close relatives of the deceased do feel pain and dissatisfaction due to the dissemination of the "digital deceased", how to balance the two becomes a controversial focus. The hierarchical arrangement of differences solves the above problems easily. The group located in the inner circle of the differential pattern is eligible to request the outer circle group to stop the online sharing and dissemination of the image of "digital deceased". This scheme actually carries out stricter behavior supervision and risk prevention before the actions at the outer layer result in specific legal consequences such as infringement of the deceased's personal rights and illegal commercial use. The so-called 'emotional harm' of close relatives should not be understood as prioritizing their personal emotional needs, but rather as having a stronger protective necessity for their connection with the deceased compared to the satisfaction of others' self emotional projection. In fact, the original intention of online dissemination of "digital deceased" should be to achieve community cohesion through sharing memories, which should be conducive to maintaining and deepening social public order. This certainly does not require people to have completely equal emotions and cognition towards the deceased, but it still requires mutual recognition of the differences between them. Being asked to stop spreading the word 'digital deceased' means the failure of mutual recognition and the disorder of relationship order, let alone the cessation of spreading the word 'digital deceased', which does not affect private mourning or other ways of expressing condolences. If the users of this technology still do not stop at this time, then their motivation itself is questionable.

As far as the implementation of the system is concerned, the above arrangement should not be realized directly through the establishment of litigation rights, but can be carried out based on the complaints, appeals and other channels in the digital platform spread by "digital dead" in accordance with the provisions of Article 49 of China's Cyber Security Law and Article 12 of the Administrative Provisions on the Deep Synthesis of Internet Information Services, and the public power departments should supervise and manage the handling of the digital platform. The reason for this is that the legal system is not only a regulation of behavior, but also an evaluation of behavior. The publicization of personal mourning may be recognized or opposed by others, and may have positive or negative consequences in a wide and complex network of relationships. Mourning actors do not have subjective malice towards harming others, making it difficult to determine in advance the expectations of others for their actions, nor can they anticipate emergent consequences. Therefore, such behavior cannot be evaluated separately in advance. The establishment of complaint channels is not intended to negatively characterize such public dissemination behavior, but only to respond quickly to risks. If the right to sue is regulated, it will present a negative evaluation tendency, which is inconsistent with the original intention of the institutional arrangement.

It should be pointed out that the platform's obstruction of dissemination should not have finality, because the creators and disseminators of the "digital deceased" did not infringe on their rights, and the platform's handling is only based on the priority protection of the interests of the inner circle. With the passage of time, the presentation of interconnected interests will also undergo dynamic changes, such as family members turning to accept the mourning method of "digital deceased" (which also explains why there are currently few disputes surrounding the production and dissemination of historical figures "digital deceased"). Therefore, while the platform is handling the matter, it should also actively establish negotiation channels. Relevant parties can negotiate specific details such as the deadline for stopping the dissemination and the content of the dissemination. It is hoped that under the framework consensus of "mourning the deceased", opportunities for reconciliation and cooperation can be found.

The further question is, how should disputes within the same circle be handled? For example, friends of the deceased may not recognize the "digital deceased" image used in their public mourning due to differences in their relationship history. This article argues that such emotional and cognitive differences are subjective and do not involve defamation, insult, or other infringement of the deceased. Therefore, within the same circle, mutual tolerance should be exercised and there is no right to demand that the other party stop producing and disseminating the image of the "digital deceased".

Of course, there may be exceptions where the actual relationship network of the deceased is misaligned with the hierarchical pattern of public order and good customs. For example, the relationship between the deceased and their friends is closer, while the "digital deceased" created and spread by the deceased's close relatives actually causes emotional harm to the deceased's friends. This article argues that there are two reasons why this situation is not granted an exceptional reverse request qualification: firstly, the actual intimacy is difficult to assess, and there is a lack of appropriate judges to measure the exceptional circumstances, making it inappropriate to institutionalize it. However, this does not prevent relevant parties from still engaging in spontaneous pre - or post negotiation on this matter. Secondly, not granting reverse qualifications to the outer layer of the differential pattern against the inner layer does not mean not supervising the actions of the inner layer of the differential pattern. If the actions of close relatives infringe upon the personality elements of the deceased, other close relatives may, in accordance with legal provisions, demand that the perpetrator bear civil liability. Before actual infringement occurs, there is more room for examination of the behavior of the surviving family members, which is also in line with the essence of the aforementioned "dynamic system theory". In summary, this does not mean that the actions of the inner circle are arbitrary, they still need to comply with legal regulations, but rather provide greater room for action and more relaxed supervision.

3.3 The autonomy of meaning and effectiveness recognition embedded in relational networks

In the production of "digital deceased", it is also necessary to fully respect the deceased's will before death. However, as previously revealed, existing solutions such as digital platform user service agreements, living wills, and wills are all centered around individuals, ignoring the impact of the use of "digital deceased" technology on other living beings and their relationships.

One possible question is that pre directives and wills regarding organ donation and end-of-life treatment can also have emotional impacts on family and friends. Therefore, why cannot the use of "digital deceased" technology adopt the same strategy as it, based on the principle of respecting the individual wishes of the deceased? This article argues that firstly, the motivation and impact of behavior should be distinguished. In the case of a will and a living will, the disposal of an individual's body, property, etc. is the motive for their behavior, while the emotional state of relatives and friends is the subsequent impact. In the context of the application of "digital deceased" technology, the behavioral motivation itself is to exert some emotional influence on future generations through the form of "digital deceased", and the wishes of the living should be considered. Secondly, emotional impact and emotional harm should be distinguished. The emotional impact of decisions made by the deceased before their death cannot and does not need to be avoided. For example, the decision of the deceased to give up treatment will inevitably have an impact on their family and friends, but the fundamental reason for this impact lies in the intimacy of the relationship. Emotional harm means having a negative impact on the relationship bond. The use of 'digital deceased' cannot and does not need to avoid emotional impact, but efforts should be made to reduce emotional harm.

Therefore, this article advocates for a shift from an individual autonomy system to pre negotiation among relevant parties regarding the production subject, production purpose, deadline, presentation content, dissemination scope, and protection measures of the "digital deceased". On the one hand, if the production and dissemination of "digital deceased" require the use of social information, the consent of the counterparty should be obtained to avoid infringing on their privacy rights. On the other hand, when the production of "digital deceased" aims to maintain connection with specific subjects and express feelings to them, it is necessary to negotiate with the opposite party to ensure that the model and specific presentation of "digital deceased" help maintain the ties of relations, not the opposite.

There are two points that need to be clarified: firstly, if the deceased clearly expressed their unwillingness to be made a "digital deceased" before their death, then this willingness should be absolutely respected without further negotiation with anyone. This claim is not solely based on respect for individual autonomy, otherwise it cannot explain why individual claims that wish to create "digital deceased" cannot be treated equally. The real reason lies in respecting the interests of the union and avoiding the deceased from being used as a tool to satisfy the emotional needs of the living. Given that there are still other ways for the living to maintain emotional bonds with the deceased, the deceased's opposition to creating a 'digital deceased' does not constitute emotional harm to the living. Secondly, the specific arrangements for creating and disseminating "digital deceased" should only be understood as an authorization within a specific scope, even if consensus is reached through negotiation, rather than an obligation that the living must comply with, thus distinguishing it from the system of wills and advance directives. The reason is that the motivation for the deceased to create "digital deceased" also flows across the spectrum of interests from "maintaining connections" to "meeting personal needs". The more the deceased hopes that their arrangement will be fulfilled by the living as an obligation, the more it means that they only focus on personal presentation to ensure that they are not forgotten and receive the expected evaluation after death. If it is truly for the purpose of maintaining connection, the emotional state of the reborn should be respected at that time. At the beginning of the fact of death, some living people may be unwilling to create a "digital deceased" of the deceased because they cannot accept the fact of death. Within the agreed deadline, it should still be up to the relevant stakeholders to decide whether and when to initiate the production of 'digital deceased', which is conducive to truly safeguarding the interests of the connection and has a consistent logic with the institutionalized arrangements based on the relationship context mentioned earlier, thus forming an effective connection between systems.

In summary, the above plan fully focuses on the existing practices and development trends of "digital deceased" technology, providing a resolution path for hot controversies such as the production and dissemination of "digital deceased" for public figures, making judgments on existing practices such as "digital funeral", and setting a value framework for technological concepts such as "digital immortality". Relationship based regulation "regards relationships rather than individuals as the basic regulatory unit, and regards good relationships rather than individual needs as the value foundation. As a result, the emotional, ethical, and cultural characteristics of the "digital deceased" technology have gained attention and become regulatory principles; The dignity of the deceased and the emotional interests of the living are coordinated through the spiritual benefit of "maintaining connection"; The dilemma of the relationship order of technological application has received typological responses; The deceased's will before death is embedded in the network of relationships for consideration, while respecting diverse wills, it also enhances resilience towards technological risks.

Conclusion

The technology of "digital deceased" has its own particularity due to the ethics of life and death behind it, and it has caused order difficulties in the gray area of the system. Taking the regulatory issues of this technology as an opportunity, this article is able to examine the legal norms established on the basis of the present world, and re understand the legal relationship between the living and the dead with the spirit of "maintaining connection". The extension and expansion of relationship networks by digital technology has promoted a thinking about complex relationship order. This prompts us to distinguish different relational contexts and shift our understanding of rights and obligations from an individualistic model to a relational model.

This article insists on using "digital deceased" technology as a medium for maintaining connections rather than the "digital embodiment" of the deceased, aiming to ensure that the development of this technology is still based on the principle of "life and death". In other words, 'life and death sometimes' not only constitutes a limitation of humanity, but also a driving force for humans to cherish each other and seek their own place in society. That is why people, while acknowledging the limited physical time, obtain eternal intergenerational inheritance through the cyclical intergenerational time. However, when people try to break the limitations of physical time itself and achieve linear time extension out of death anxiety and cherishing life, they will paradoxically fall into nothingness due to the flattening of time and the loss of coordinates. This article establishes that the purpose of "digital deceased" technology is to make people accept rather than weaken death; To commemorate rather than replace the deceased; It is to unite rather than separate the mourning community and provide regulatory solutions based on this. This attitude is not a form of anthropocentrism or restraint or even conservatism towards technological development, but rather an acknowledgement that regulating technology is not a "one size fits all" project, focusing on the process of technology generation and development in relational networks, so that technology can be appropriately matched with the problems to be solved at present, in order to respond to paradoxes through gradual debugging. Given that our current meaning and order of life are still based on the concept of 'life and death are bounded', we should use this as a starting point to explore the 'digital deceased' technology, in order to defend the value of being human. Of course, a non objectified understanding of this technology enables us not to adopt a rigid regulatory approach, but to fully comprehend its dynamism and constructiveness, and to continuously respond agilely in future interactions with it.