Deepfakes of the Dead: Can AI Recreate You Without Consent?

As our lives increasingly play out online, we leave behind a vast digital footprint. But what happens to that content when we die? And more importantly, can it be used to digitally recreate us?

In Australia, these answers sit at a tricky crossroads of copyright, intellectual property, and platform policies. The law has not yet caught up with the pace of AI technology, and there are few clear rules on whether someone can use your likeness, voice, or personality after death.

AI and the Use of Posthumous Data 

In recent years, a newer issue has been emerging in regard to how AI systems can use a deceased person’s data to recreate their likeness, voice, or personality. While this raises moral and emotional concerns, it also opens up intellectual property and privacy questions. In Australia, the Privacy Act 1988 (Cth) governs the handling of personal information. However, it is important to note that privacy rights under the Act cease upon death, meaning there are currently no specific statutory protections to prevent someone from collecting or using your personal data after you die.

Australia’s existing legal framework does not provide explicit rights to a person’s image or voice after death, unless they are protected by copyright. That means your likeness, voice, or mannerisms may not be protected unless they are fixed in a copyrighted form (e.g. a video). There is also no clear law stopping a third party from training AI on your public content after you die. Herein lies the complex intersection within Australia’s legal system as a result of the laws inability to develop at the same pace as technologies.

Copyright and Digital Remains

Under Australia’s Copyright Act 1968 (Cth), any original literary, artistic, dramatic and musical works are automatically protected. This includes things such as words, images, videos, songs. Copyright is a property right and typically survives the creator’s death, passing to their estate. In most cases, copyright lasts for the life of the author plus 70 years. After that time, the material generally enters the public domain, where it can be used freely by others.

In many instances the estate will legally own the copyrights, however, will not have access in order to control and manage it. Therefore, while your family may legally own your Instagram photos or YouTube videos, they may not be able to access your online accounts to retrieve or manage them. This is because most social media and cloud-based platforms operate under Terms of Service (ToS) agreements that are non-transferable, even after death. Without the necessary login credentials or access rights, platforms like Facebook, Apple, or Google typically refuse to grant access, even to next of kin.

The US right of publicity:

By contrast, the United States provides much stronger protections through the “right of publicity”, which allows individuals and their estates to control and commercially exploit their name, image, likeness, and voice, including after death. For example, the estate of a deceased celebrity can prevent companies from using their face or voice in advertisements without permission. This legal framework has also been extended to combat the unauthorised use of AI-generated recreations of the dead. Australia does not currently recognise a general right of publicity, leaving a significant gap in legal protection against digital re-creations of a person’s identity.

Moral Rights After Death:

In addition to copyright, creators in Australia enjoy moral rights, including the right to be attributed as the author and to object to derogatory treatment of their work. Importantly, moral rights do survive death for the term of copyright and can be enforced by the author’s legal personal representative, such as their executors. This means that heirs may have legal standing to object to misuse or distortion of a deceased person’s work, including any unauthorised AI use.

The Rise of Digital Executors

While Australia’s legal system offers some protection through copyright and moral rights, there is still no unified framework for managing digital legacies. in response, estate planning is beginning to evolve. Lawyers increasingly recommend appointing a "digital executor", who can manage your digital assets, online accounts, and intellectual property after death.

While not formally recognised under Australian succession law, digital executors can be empowered through wills and directives. This role could involve retrieving copyright-protected files, requesting data deletion, or even managing income generated from platforms like YouTube or Spotify. However, it's important to understand the limitations and that appointing a digital executor does not guarantee they can access or control your accounts. Most platforms are still governed by their own ToS, and unless you've taken proactive steps to provide login credentials, executor may still face legal and practical barriers.

Until a more comprehensive legal framework emerges, navigating digital copyright and estate management in Australia remains a complex and evolving space. At BlackBay Lawyers, we help individuals and creators plan for the future of their digital assets. Whether you're managing copyright in a loved one’s work, securing rights to your own online content, or preparing your estate to handle digital accounts, our team offers practical, forward-thinking legal advice.

If you're unsure how your digital assets fit into your estate or want to ensure your creative work is protected beyond your lifetime, get in touch with us today.

The content in this Article is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. It should not be relied upon as such. You should seek legal or other professional advice before acting or relying on any of the content.

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ABOUT THE AUTHOR

Katie O'Brien is an enthusiastic and driven member of our team. With a genuine focus on understanding each client’s unique needs, she uses her legal expertise to craft tailored strategies that deliver exceptional results.

Katie focuses on assisting clients in areas of defamation, social media, creative industries, employment law, and commercial litigation. Holding a Bachelor of Laws and a Bachelor of Media (Public Relations and Social Media) from Macquarie University, Katie applies her legal knowledge and strong understand of the digital world to expertly navigate the unique challenges arising in these sectors.