Whose life?

So it was, indeed, Leelah’s parents who asked Tumblr to take down her blog. Not just the suicide note which, in accordance with their own T’s & C’s, Tumblr might have been expected to.

But EVERYTHING. Leelah’s random jottings. Her drawings. Her name.

Because, of course, in the view of some, those things were never hers. They were, and are, the property of the parents – for them to dispose of as they will.

Or are they? Stand by for an interesting and possibly very interesting legal battle.

Blog down

Let’s start with the erasure of Leelah. I spotted this yesterday afternoon while working on a slightly different angle to the story. Like a good little reporter, i attempted to dig a little deeper: but Leelah’s parents are barely speaking to anyone in the press.

And Tumblr! Well, like many cutting edge social media organisations, they are a nightmare to get through to. After a somewhat fruitless half hour ringing round various numbers in New York, i gave up and reported the story bare.

Leelah’s blog was down. Various theories existed as to why. Not my job to speculate any further.

Full marks to the Daily Mail, therefore, for taking this on to the next level, making contact with Tumblr, and confirming that the blog has been made inaccessible at the request of Leelah’s family.

According to a statement published by MailOnline, a Tumblr spokesman said: “When a direct family member contacts us about the blog of a deceased user, we work with them to provide their desired outcome.”

For pity’s sake

That is interesting – and almost certainly presages a new and darker twist to this already pretty bleak saga. Because there are two reasons why one might go along with the wishes of the family in such a case.

The first, out of respect and sympathy for the family: the second because you (or your lawyers) consider that the family have some legal claim to control of the content.

I can well understand the first. After all, in ordinary circumstances, where someone’s nearest and dearest dies suddenly, it is simple respect to go along with their wishes. Isn’t it?

Well, no. Not exactly. Some people clearly believe that Leelah’s family were in part responsible for her death, and they will surely argue that giving the family the right to suppress her views is wrong.

In the EU, too, there would be data protection considerations, although i suspect these would play very differently in the US of A.

Whose Blog?

The much bigger issue is whether, apart from the emotions involved, the family have any rights whatsoever to dictate what happens to Leelah’s blog now.

Here, i will own to not having the faintest about what US law says on the matter. I’m not entirely clear what UK law would say either, so here’s some thinking, some open-ended jottings if you like, that those more learned in these matters than i can develop.

Were Leelah still alive, i think in the UK there would be not a shadow of a doubt that her blog would stay. Its uncomfortable, edgy, but probably not quite libellous. Its hers. And while she would remain, in English law, a child, at 17 she would have many rights.

Those rights, courtesy of a certain Victoria Gillick would include, as appropriate, the right to birth control, as well as extensive rights to determine her own medical treatment- all without any need to seek parental consent.

Had she lived in the UK, she might well, as occurred recently in Australia, a jurisdiction based on similar legal precepts, been accorded the right to seek medical treatment independently of the wishes of her parents.

And her blog? Well, here i am not entirely clear. Children in the UK are very limited in their ability to control their own legal and financial affairs. However, where a clear indication of a child’s wishes in a significant matter is given, i strongly suspect a court would look for ways to uphold those wishes.

And what were Leelah’s wishes? They may not have been expressed in a standard legal form, but arguably they were clear and probably written at a point when she was angry but rational. She wrote, in her now removed blog:

As for my will, I want 100% of the things that I legally own to be sold and the money (plus my money in the bank) to be given to trans civil rights movements and support groups, I don’t give a s**t which one.

Yes. One can argue the toss on that. Which trans organisation? Perhaps some weasel lawyer, relying on that second sentence, will attempt to get her worldly goods donated to a trans reparation therapist.

But that’s obviously not what she means.

Likewise the blog. Perhaps it doesn’t have any obvious monetary value (although given the footfall in recent days, it could easily be monetised and generate significant revenue for any charity prepared to take it on).

Very clearly, Leelah wants nothing of hers to go to her family: everything to go to trans support.

I hope, in the days and weeks to come, we will be pleasantly surprised to discover this has happened.

If we don’t, then a most interesting legal landscape opens up in which, perhaps, a lawyer acting on a pro bono basis will be needed to challenge blatant attempts to lay claim to Leelah’s estate by people she absolutely wanted to have no continuing part in its control.

Although, in the end, just handing the blog over to the trans community would feel to be the more charitable – one might even say, Christian – way forward.

About janefae

On my way from here to there
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16 Responses to Whose life?

  1. Jennie Kermode says:

    Isn’t this likely to be a clear case of copyright law? Leelah being deceased, copyright over her written work would pass to her next of kin. As such – regrettable though it may be – they would have the right to withdraw it from publication in the absence of any prior agreement with a publisher to the contrary.

    • janefae says:

      Oh…you are still up. I was tempted to ask you about a par i wrote, as to whether it skirted libellousness. Then decided it was quicker, in all ways, just to snip it.

      I am not so sure, Jennie…although am more than willing to accept i may be totally wrong. I guess it boils down to a few short sharp questions.

      – can you “leave your copyright” to some person or organisation? Dunno. Will go google that in a mo, but obviously its key.

      – if you can leave it to someone, does the clear statement of intent on Leelah’s blog count as a will?

      – if it does, would a court enforce such an expression from a 17-year-old?

      I am sure it depends on many factors, and also the jurisdiction. However, i am also sure it is not beyond a legal stretch for two or three of the above to be a (tentative) yes.

      • Cathy Butler says:

        What you can do is appoint someone you trust as your literary executor – which isn’t (or need not be) the same person as the copyright holder. Obviously that wasn’t something uppermost in Leelah’s mind, however; and besides, she appears to have had no one whom she could trust in that way.

      • Johan says:

        No, it’s not a valid will. For one thing, Ohio law states that you need to be 18 years old to write one.

      • janefae says:

        That i suspected. My point, in part, is both UK and Australian jurisdictions have ways of working round such specific strictures, in order to respect the wishes of individuals who are clearly capable of taking on responsibility for their actions. I don’t know if the USA has similar.

  2. Copyright is automatic and doesn’t need to be claimed or specifically left by anyone, and it is life plus 70 years in the US. This might be said, given her last wishes, to lie with whatever trans charity gets control of it, if it can be argued not to belong to her parents.

    I was going to suggest that you might want to go down the UN Convention on the Rights of the Child, but of course the US is one of the few countries that has not signed it if my memory serves me rightly. Whether the UN Dec of Human Rights is relevant here (which the US has signed) I wouldn’t know. I think this could become an important test case.

  3. margomusing says:

    In the UK you also have to be 18 to make a will, and here (and I think also in Ohio) a will is only valid if correctly signed and witnessed, requiring the testator to sign it in the presence of witnesses, and those witnesses to sign it at the same time, so the expression of wish in the blog, however clear, would have no legal force. Sadly, I think that all she owned, including copyright to her blog, is likely to belong legally to her parents.

    I think the answers to your questions are:

    – can you “leave your copyright” to some person or organisation? Dunno. Will go google that in a mo, but obviously its key.
    Yes
    – if you can leave it to someone, does the clear statement of intent on Leelah’s blog count as a will?
    No
    – if it does, would a court enforce such an expression from a 17-year-old?
    No

    • janefae says:

      Thanks. I think the emerging consensus is that the parents CAN do much as they like.

      I suspect that in the UK – and particularly in Scotland, where the rights of those aged 16 and over have been given increased recognition of late – the courts might well find a way to ensure that Leelah’s wishes were complied with, even if not technically her “will”.

      There are also two parts to this. What happens to the blog? What happens to her savings?

      While the blog is today’s focus, i think it would be grotesque in the extreme if her “worldly goods” did not go to some trans support organisations…

      • Johan says:

        That would be dependent on her parents making sure that is the case, which I find … unlikely. I think we can be pretty sure her worldly goods will, in fact, not go to some trans support organisation, no matter what she wished.

  4. margomusing says:

    Just to add – if Leelah were still alive, then the situation would be different (at least in the UK) – at worst, the copyright may have been owned by her parents, but as trustees for her and as such required to act in her best interests, and it would also have been possible for her to apply to have different trustees appointed if she felt they were not doing so. At best she would have owned and controlled it outright (I think the latter is more likely, it’s generally only land and shares which can’t be owned directly by minors, but it isn’t my field so I may be wrong).

    No idea what the law in Ohio would have been, or indeed whether the applicable law would actually be that of whichever state Tumblr is based in.

    On the plus side, if the mirrored sites are hosted outside the US then it would likely be very hard indeed for Leelah’s parents to get them taken down, even if, technically, they are legally entitled to do so.

  5. daira says:

    I’m not sure why Tumblr would be expected to do anything other than follow their existing policy. In the vast majority of cases it would be the right thing for a social media provider to act on a request by close family to take down the content after the death of a user; are we asking Tumblr to take a political stand based on the details of this case? That doesn’t seem realistic. (Nor does it seem necessary, since copies can always be taken in cases like this one where it is in the public interest.)

    Note that the Internet Archive responds to deletion requests from the current domain owner, so that is not a stable copy.

    • janefae says:

      I’m not entirely sure you’re right in respect of the UK. I was, for a while, Data Compliance Officer for a major financial institution in the UK. We had a number of difficult requests regarding deceased person’s records…and it was by no means a foregone conclusion that we would just do what the relatives rang up and asked us to do.

      In one case i am aware of (won’t say which company this happened to), failure to follow the letter of the law led to a massive lawsuit against the company concerned. The failure was actually the company being TOO quick to remove records at the insistence of a relative, which had knock-on consequences elsewhere they had not appreciated.

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