The law of digital afterlife: the Chinese experience of AI ‘resurrection’ and ‘grief tech’

Abstract

Introduction

In the Chinese sci-fi film ‘The Wandering Earth II’, scientist Tu’s quest was to create a digital copy of his daughter after his wife and daughter died in a car accident. More recently, in the Korean sci-fi film ‘Wonderland’, the titular ‘Wonderland’ was the technology where people were able to communicate with their deceased loved ones via a video chat simulation service. As depicted in the film, advancements in artificial intelligence and virtual reality now allow users to chat virtually with their deceased loved ones. The technology harnesses photos, videos, and internet records, combined with AI, to virtually ‘resurrect’ individuals—replicating their appearance, personality, and essence. The once fantastical concept of using AI to replicate a digital replica with the appearance, voice, and personality of the deceased to interact with the real world is now a reality.

‘I feel like she’s back by my side again, and her voice and personality are completely matching, almost identical to her when she was alive’, Ruirui’s mother told CCTV’s reporter.¹ In 2021, 9-year-old Ruirui passed away due to glioblastoma. Upon seeing online instances where people used AI to digitally ‘resurrect’ their deceased loved ones, Ruirui’s family contemplated doing the same. ‘When I am alone, for example, when I’m at home, usually I just look at a photo, there is no interaction, no chatting. Then with a digital person, based on her personality and her voice, I can interact with her, and I can feel her presence. I feel like this extends the love from my child to me, and my love for my child, it’s the mutual continuation of two loves.’²

Using AI generative technology to create a digital character as a replica of the deceased has recently become a trend and a business in China. The trend arguably gained popularity when SenseTime’s founder and renowned AI scientist, Tang Xiaoou, who died in December last year, appeared digitally and gave a talk at SenseTime’s annual event in March 2024.³ Since then, the technology further gained traction with the ‘revival’ of Chinese celebrities such as Qiao Renliang, Godfrey Gao and Coco Lee by Chinese vloggers.⁴ The videos were circulated on Chinese social media with the celebrities saying to their fans that ‘they never left’, intending as an ‘expression of love’ to the fans.⁵ Later, the families of the late actors condemned the creation of the AI character without consent as they found the practice unacceptable.⁶

The matter has sparked a huge debate in China’s online community as public opinions vary. Qiao’s father’s request to remove the videos has so far received over 240 million views on Weibo.⁷ For some, it is a mental pain that exposes scars. As one wrote on Weibo, ‘to tell the truth, using AI resurrection technology to promote paid services is undoubtedly disrespectful to the deceased and pouring salt on the wounds of their family members’.⁸ At the same time, many recognised it as a positive use of AI. Taiwan music producer Tina Bao saw creating an AI replica of his late daughter as a comfort to soothe his longing.⁹ It was perceived as ‘a chance to speak to their loved ones again’.¹⁰ As with other uses of AI, using AI to create digital replicas of the deceased raises legal concerns. This is all the more so when it has become a business in China where companies are capitalising on the demand for AI-generated images and other audio-visual materials of the deceased. The controversy reached its height during this year’s Qingming Festival. The Qingming Festival, also known as the Tomb-Sweeping Day, is a festival devoted to paying tribute to one’s ancestors and remembering the dead. Commercial demand surged.¹¹ On China’s e-commerce platforms, commercial AI ‘resurrection’ services are on offer for as little as 10 yuan to more than 10,000 yuan.¹² The commercialisation of the practice is faster than policymakers’ response and regulation of it.

This article first provides an account of the industry of AI ‘resurrection’ in China in relation to its technology, standard operation, and scale with an overview of the emerging area of ‘grief tech’. It then considers its private law and regulatory issues concerning the potential infringement of the deceased’s portrait right and its remedies and how the use of AI in this context is regulated in China. This article uses the Chinese experience for discussion as to date the practice is most prevalent in China across the world where it has already been widely commercialised. The legal considerations raised in this article are not limited to the situation in China and are relevant to other jurisdictions whilst AI-powered services of digital ‘resurrection’ are developing in other countries, such as South Korea.¹³ This article will be of interest to the international audience interested in the regulation and governance of AI as a generative technology and those interested in the regulation of the emerging field of ‘grief tech’ and ‘death tech’.

The grief tech of AI resurrection

Since 2022, there have been a number of funeral companies in China that realise the commercial opportunity to incorporate AI as part of their businesses. Fushouyuan, as one of the biggest cemetery and funeral service providers in China, made known its intention to create a digital transformation of future funeral services. Fushouyuan aimed to introduce funerals with holographic projections of the deceased with digital genealogy and online memorial halls.¹⁴ As its chief executive said, ‘we hope to let the living understand that death is not the end of life. People want to use AI to recover the deceased because they need to release their emotions’.¹⁵ Their concept is to make death less painful to the deceased loved ones by using digital technologies to optimise grief as part of its business in ‘death tech’ and ‘grief tech’, as defined later in this section.

The digital transformation of the traditional cemetery and funeral industry is proclaimed as a greener and more ecological approach.¹⁶ The company has since developed its digitalised cemetery. However, it was not until 2023 that services for generating funeral-related materials with AI started to gain popularity. The first batch of services included creating life microfilms containing photographs of the deceased as a ‘consolidation of all the digital traces of a person’ in an online memorial.¹⁷ Subsequently, AI technology is deployed in wider areas to mimic the deceased’s personality, appearance, voice, and memories for interacting with mourners.¹⁸ As part of the funeral, a digital ‘person’ is created. During the ceremony, the AI-created digital personality can speak and interact with mourners with a reproduction of the deceased’s traits based on the deceased photographs, videos, voice recordings and other audio-visual materials provided by the deceased families.¹⁹ The digital replica is supposed to be part of the funeral and memorial services offered by the funeral companies to heal grief as solace.²⁰ Nonetheless, with the popularisation of its underlying technology, which makes the threshold of tampering lower, many companies began to capitalise on it as a business opportunity.

The focus of the later emerged businesses is slightly different than that of the previous practices of the funeral companies. The focus is now more on the interaction and communication between the digital replica of the deceased and the person in real life whereas in the past the digital replica was considered as part of the deceased’s memorial. There was no real ambition of ‘reviving’ the deceased. The fact that a funeral is conducted to a certain extent reflects that death is accepted. At the funeral, the digital replica is supposed to say their last words before they leave the world and their virtual presence was not anticipated to extend beyond the burial or cremation of the corpse. But as the technology develops, AI is now commonly used to ‘revive’, ‘resurrect’, and ‘reconnect’ the deceased person to the real world. The emerging businesses are aiming to create the perception that the deceased is capable of communicating with their loved ones as if they had never departed the real world. As one of the AI start-ups’ founder said, ‘digital immortality is coming, which enables everyone to have a virtual online twin’ who saw AI as ‘an answer to human’s quest for immortality’.²¹

The prevalent AI ‘resurrection’ services in China and beyond can be into three categories based on cost and technical difficulty. They all belong to the category of deep generative models.²² They use AI as a generative technology which has been applied in many areas such as image and video generation, sequence modelling, and speech enhancement.²³ At the most basic level are photo-driven digital avatars, commonly known as ‘talking photos’. By using deep learning, image processing, and generative technology, the face, including the mouth and eyes of the person in the photo can be animated. It is possible for the person in the photo to speak or sing with lip-syncing and speech generation. This type of technology is mature and open-source. With mass production, the cost can be reduced significantly to as low as 10 yuan per use.²⁴

At the second level is emotion-capture-driven pseudo-live streaming or pseudo-videos. It essentially replaces a real-life person with the image and voice of the deceased for voice or video calls and generating short videos such as blessings. This involves technologies such as voice cloning, AI face swap, motion capture, and ‘deepfake’ (as in the combination of ‘deep learning’ and ‘fake’).²⁵ The videos of the deceased celebrities fall under this category. Services in this category are slightly higher at around hundreds or thousands of yuan.²⁶ A lot of young people in China purchase pseudo-live streaming services for their elderly relatives where the service vendor will interact with the elderly with AI mimicking the deceased’s face and voice.²⁷ The concept of deep face manipulation technology to generate an AI character is not completely new. By face swapping between the source face and the target face, it has been used maliciously by criminals to, for example, commit fraud or media manipulation via impersonating someone.²⁸

At the most advanced level, as the stand-out feature in the most recent burgeoning AI ‘resurrection’ industry, a ‘digital human’ is created and a large language model is used to simulate the thoughts of the deceased to enable real-time communication. Data such as photos and voice recordings of the deceased are collected in order to clone the appearance and the voice of the person. Information about the deceased interests, traits, preferences, and character helps simulate the personality of the deceased. Services of this kind usually have a ‘digital human’ maintained within a system. Users can log into the system to interact with the digital representation of the deceased through text or voice. The cost in this advanced category ranges from some 50,000 yuan to 100,000 yuan, depending on the degree of accuracy and detailedness. As one observed with Tang’s appearance in SenseTime’s annual event, while previously digital humans often appeared stiff, with awkward movements and mismatched mouth movements, they now have a smarter ‘brain’, allowing them to vividly mimic the human appearance, as well as replicate their voice, expressions, and movements who is almost indistinguishable from real-life individuals.²⁹

Each type of AI ‘resurrection’ falls within the concept of ‘grief tech’. ‘Grief tech’ refers to the technology designed to help support people through the process of mourning and emotional healing after the loss of a loved one.³⁰ Grief tech covers a range of digital solutions, including apps, websites, AI-driven platforms, and virtual reality experiences that facilitate remembrance, provide psychological support, or simulate interactions with the deceased. AI ‘resurrection’ is an example of ‘grief tech’ where digital avatars modelled after deceased individuals are created to offer a way for the bereaved to engage with memories of their loved ones. Whereas ‘death tech’, as a type of service in parallel provided by some funeral service companies, refers to the broader category that covers all technological innovations related to death, dying, and end-of-life care.³¹ This includes not only ‘grief tech’ but also platforms for digital legacy management, online memorials, end-of-life planning tools, and even advanced care directives managed through blockchain technology. ‘Death tech’ aims to modernise how society deals with death, making processes like funeral planning, estate management, and grief counselling more accessible, efficient, and personalised. While both ‘grief tech’ and ‘death tech’ raise crucial ethical, legal, and societal questions about how we handle death and mourning in an increasingly digital world, this article considers primarily the private law and regulatory aspects of AI ‘resurrection’ services as one of the prominent examples of ‘grief tech’.

The deceased’s portrait right

When AI is used to generate images or videos mimicking some other persons, creating an impression that they are behaving in a certain way, it raises the legal concern of infringing on the civil rights of others. As explained, traditionally, the technology was usually used to swap faces or voices with celebrities from some source image or recordings. For instance, as early as 2019, the Chinese app ZAO allowed users to select from a variety of celebrity videos and superimpose their own faces onto them. Users could then share these modified videos with friends, using photographs and videos captured on their mobile devices.³² But when the faces that are superimposed onto images and videos are deceased persons, there is a further layer of legal complexity.

Article 1018 of the Chinese Civil Code provides that ‘A natural person enjoys the right to likeness, and is entitled to make, use, publicise, or authorise others to use his image in accordance with the law. The likeness is an external image of a specific natural person reflected in video recordings, sculptures, drawings, or on other media by which the person can be identified.’ The ‘right to likeness’ here is comparable to the right of publicity and in other jurisdictions.³³ The term ‘portrait right’ is the literal translation of the term xiaoxiangquan used in the Civil Code and is used interchangeably in this article with the right to likeness.³⁴ The Civil Code when promulgated in 2020 contains a number of personality rights which are ‘aimed at the protection of the integrity, freedom, and dignity of a person’ and the right to portrait is one of them.³⁵ Elsewhere in the USA, California Civil Code provides for the right of publicity for natural living persons. This covers the commercial use of a person’s personal characteristics (including likeness name, voice, signature, and similar features) for which compensation may be obtained.³⁶ The New York State Civil Rights Law in a similar vein establishes the right of publicity, prohibiting the use of a person’s name, portrait picture, or voice for advertising or commercial purposes without the individual’s prior written consent.

While the portrait right of a living person falls within the respective legislative protections, in the context of AI-created digital replicas of deceased persons, the further question is whether a dead person’s portrait right continues to be protected after death. Some personality rights are corporeal such as the right to life and health. Some are incorporeal, for example, the right to portrait and privacy. Corporeal rights by nature cannot extend beyond physical existence. The Chinese Civil Code provides that ‘the personality rights, proprietary rights, and other lawful rights and interests of the persons of the civil law are protected by law and free from infringement by any organisation or individual.’³⁷ A person, after death, nonetheless, ceases to be a person of the civil law. Portrait right, as a personality right and a right in civil law, therefore, is in theory not exercisable by the deceased although the deceased’s personality interest may subsist after death. This is consistent with the default position in other jurisdictions. In 2007 the Californian law had changed to extend the right of publicity to 70 years after the deceased’s death.³⁸ The right of publicity contained in New York State Human Rights Law has for a long period of time subject to the controversy of whether it is applicable to deceased individuals. In 2020, a new statutory provision was enacted to protect deceased persons for 40 years post-death.³⁹

In China, Article 994 of the Civil Code provides that ‘Where the name, likeness, reputation, honour, privacy, remains, or the like, of the deceased, is harmed, the spouse, children, and parents of the deceased have the right to request the actor to bear civil liability in accordance with the law. Where the deceased has no spouse or children, and the parents of the deceased have already died, other close relatives of the deceased have the right to request the actor to bear civil liability in accordance with law.’ In other words, even though portrait right is not expressly provided by the Civil Code as a right enjoyed by the deceased after death, the close relatives of the deceased have, pursuant to Article 994, the right to plead for civil remedies where the likeness, i.e. portrait, of the deceased is harmed.

As to whether there exists a limitation period for this claim, the general rule is that this right to request civil remedies from the feasor is exercisable throughout the lifespan of the deceased’s close relatives. This is premised on the view that the act of infringing the deceased’s portrait causes harm to the spouse, children, parents and close relatives of the deceased because of their sufficiently close relationship and tie of love and affection to the deceased.⁴⁰ If the deceased has a particular status, such as martyr, the use of personality right involves an additional element of public interests thereby a wider group of persons may act upon the infringement. For example, the procuratorates may initiate lawsuits against acts that infringe upon the name, portrait, reputation, and honour of martyrs and harm public interests as an alternative to the martyrs’ close relatives.⁴¹

It follows that when someone uses a deceased person’s likeness for creating a digital representation, as a matter of Chinese law, the close relatives have a right to claim damages against the feasor. It is helpful to consider some typical cases to illustrate how the section operates and how it is applicable to AI ‘resurrection’. The first category of infringement causes emotional distress to the deceased’s close relatives. Such infringements typically occur when the perpetrator exposes the deceased’s privacy or damages their reputation or remains through mediums like newspapers or the internet. A well-known example is the ‘Lotus Girl’ case. Known as the ‘Lotus Girl’, the famous actress passed away in 1944. The author of the novel ‘Lotus Girl’ subsequently in 1987, without permission, used her as the protagonist in the fiction about events during the two years from ages 17 to 19, including romantic entanglements with three men and fabricated stories of her being molested by Tianjin gang leaders. The novel was published in the Tianjin newspaper, Tonight Newspaper. It further depicted that the deceased’s mother consented to her daughter becoming a concubine for another person and accepting betrothal gifts. The deceased’s mother, suffered from mental distress, then sued the author and Tonight Newspaper.

The court found that while novels are fictitious by nature, using a real person’s name for a character and disregarding their dignity with arbitrary fictionalisation is neither legally nor morally acceptable. The fabricated details about the moral character and social conduct of the deceased and the deceased’s mother diminished the deceased’s dignity and harmed her reputation. As a result, it damaged the reputation of the deceased’s surviving relatives to some extent. The portrayal of the plaintiff in the novel harmed her reputation and resulted in some economic loss. The case was concluded with the Tianjin court-led mediated outcome that Tonight newspaper was ordered to publish an apology letter penned by the author and an editorial containing the apology. A life story account written by the deceased’s mother was to be published in the newspaper. The court left the parties to resolve mutually between themselves the issue of economic compensation and the original novel shall not be reprinted or republished in any form and any subsequent publication must be first approved by the deceased’s relatives. During the trial, due to the lack of clear legal provisions regarding this type of infringement at the time, the Tianjin court sought guidance from the Supreme People’s Court. The Supreme People’s Court responded with a confirmation that the deceased’s right to reputation should be legally protected, and her mother has the right to file a lawsuit with the court.⁴²

The second type of infringement involves the exploitation of a deceased person’s likeness for the primary purpose of profit, without necessarily causing distress to the deceased’s close relatives. A well-known case involves domain names concerning the Chinese writer of Lu Xun.⁴³ The son of Lu Xun as the plaintiff discovered in early 2008 that the defendant had registered the domain names of ‘Lu Xun’ in Chinese and subsequently put them up for sale. The plaintiff asserted that the defendant’s actions infringed upon the personal rights associated with Mr Lu Xun’s name, and therefore, requested the court to order the defendant to cease using the related domain names. The plaintiff sought the court to order to transfer the said domain names to the plaintiff for registration and use, along with compensation for the related damages. The court ruled that as Lu Xun was a revolutionary writer with significant historical standing in China, the plaintiff, as a close relative of Lu Xun, had the right to protect the personal interests associated with Lu Xun’s name. The defendant’s use of the disputed domain names for commercial purposes and listing the domain name for sale or rental constitutes an infringement by violating social public interest and social ethics, thereby infringing upon the deceased’s name.

In the second category of cases, the individuals engaging in these activities generally employ the deceased’s personal identifiers with the primary intent of profit. The infringement does not necessarily tarnish the deceased’s social reputation. When most people recreate AI digital replicas of celebrities, they appear to have no intention to harm their reputation. Rather, it is usually to honour and to display continued love towards the celebrities. Some may commercialise their services, but it is not readily clear if and how precisely their close relatives suffer from emotional pain. Where if it cannot be proved that the deceased close relatives have suffered emotional distress of the infringement, it may be questioned whether Article 994 is applicable. This requires an examination of the logic in Article 994—whether it is compensation for infringing the deceased’s civil rights and interests which subsisted after death or compensation for the distress caused to the deceased’s close relatives.

First, it is helpful to compare portrait rights with other types of personality interests protected in Article 994. They are the rights to ‘name, likeness, reputation, honour, privacy, remains’. The portrait right of the deceased, i.e. the right to likeness, is a type of representational personality interest—it reflects a person’s unique symbols or characteristics, and they often possess some commercial value. Another type of personality interest is spiritual, such as the rights to reputation, privacy, and honour. The final type of personality interest is material. They have physical carriers, such as the deceased’s remains. When a digital replica of the deceased is created, the most relevant aspect of the deceased’s personality interest is the right to likeness instead of the spiritual or material personality interests.

One view is that since a deceased person is no longer a civil person, it is not possible for the deceased’s interests to be an object for protection under the civil law.⁴⁴ According to this view, Article 994 protects the interests of the surviving close relatives. This view argues that a deceased person no longer has any personality interests such as spiritual and representational interests after death because there is no living subject to possess these interests. The major criticism of this perspective is that acts harming the deceased’s personality interests have to result in the experience of some mental anguish on the part of the surviving relatives for a claim to substantiate. A presumptively strong argument supporting this view is that the law specifically provides that only the close relatives may sue and there is no expression to the effect that they are suing ‘on behalf of’ the deceased.

The contrary view is that a natural person who has died retains a part of civil rights capacity regarding their protected personality interests.⁴⁵ The legislative intention of Article 994 is to protect human dignity. When the deceased’s spiritual interest is infringed, such as when their reputation is defamed, as confirmed by the Supreme People’s Court at the time in the ‘Lotus Girl’ case, the deceased’s right to reputation is legally protected. By analogy, the representational interests of the deceased should equally be protected. Both spiritual and representational interests do not necessarily have tangible conditions attached and they are separate from the material aspects of the deceased person’s body. They continue to have much relevance in the real world despite that the deceased’s physical body ceased to exist.

The present author’s view is that, in the spirit of the Civil Code, Article 994 intends to protect the deceased’s personality interests which subsist after death. Where a close relative sues under Article 994, the close relative is suing for an infringement of the deceased’s personality interests. This is because it is only after becoming deceased can the right to protect the deceased’s personality interests arises. During their lifetime, any infringement on a natural person’s personality rights results in claims for personality rights, which the victim can exercise. This claim does not extend to close relatives. Infringement on the personality interests of the deceased can only occur after the natural person’s death, thereby invoking Article 994 of the Civil Code to address the infringement of the deceased’s personality interests. If otherwise, it would result in the interpretation of Article 994 that it is not a legal provision that embraces the concept of the deceased’s personality interests. In that view, the interests of ‘name, likeness, reputation, honour, privacy, remains’ are contained in Article 994 merely for the close relatives to prove, as an element of the claim, that some interests on a deceased part are harmed before making the claim for distress. The law intends to protect the deceased’s dignity whilst meeting the spiritual needs of the deceased’s living relatives, but not merely the latter.

In this premise, the use of AI to create a digital replica of the deceased may infringe on the deceased’s personality interests. First, with regards to its use to ‘resurrect’ a celebrity or public figure for profit, this is likely to be an infringement of the celebrity’s personality interest in portrait right. The situation is similar to the case of Lu Xun as discussed earlier. While the deceased celebrity’s close relatives may suffer from some mental anguish, it should be recognised that this is not a requirement for the claim to succeed, although proving mental anguish would aid the claim to be successful as per judicial interpretation. The Supreme People’s Court judicial interpretation in 2020 provides that ‘Where a deceased person sustains harm to his or her name, likeness, reputation, honour, privacy, bodily remains, or osseous remains, among others, and any of his or her close relative brings a case to the people’s court, claiming damages for mental distress, the people’s court shall support the claim in accordance with the law’.⁴⁶ Instead of interpreting that only damages for mental distress can be claimed, the more accurate view is that claims concerning mental distress are most likely to be supported but they are not the exclusive interests protected under Article 994.

Before the Civil Code was enacted, the General Principles of Civil Law provided that ‘citizens enjoy the right to their likeness. Without the consent of the individual, a citizen’s likeness may not be used for profit’.⁴⁷ In the Civil Code, the ‘use for profit’ element is no longer present. Article 1019 states that ‘unless otherwise provided by law, no one may make, use, or publicise the image of the right holder without the latter’s consent’.⁴⁸The concept is that the right to likeness is not to be compromised unless, without more, there is consent from the person holding the right to likeness. As explained, the right to likeness is held by the living person. After death, it is best to understand that the representational interests subsist, and the surviving close relative may express consent or disapprove of its use. It follows that if the deceased celebrity’s close relatives do not consent to the use of the deceased’s images, voices and videos for creating the AI replica, it is prima facie an infringement of the personality interest in the portrait right of the deceased. But Article 1020 of the Civil Code states that some acts, ‘if done in a reasonable way’, may be performed without the consent of the person holding the right to likeness. They are to use (i) ‘publicly available images to the extent necessary for personal study, art appreciation, classroom teaching, or scientific research’; (ii) ‘the image which is inevitable for conducting news reporting’; (iii) ‘the image to the extent necessary for a State organ to perform its responsibilities in accordance with law’; (iv) ‘the image which is inevitable for demonstrating a specific public environment’; and (v) ‘the image for protecting the public interests and the lawful rights and interests of the said person’.⁴⁹ Therefore, if a person creates an AI digital replica of a deceased celebrity or public figure for personal appreciation, without publicising it to the public for profit, and using it in a reasonable way, there is no need to obtain consent as per the law.

It follows that if the creators and publishers of certain AI ‘resurrection’ videos act with good intentions, with an aim to use AI technology to express and convey remembrance of public figures and have obtained the consent and authorisation of the relatives, there should be no infringement of the deceased’s portrait rights. But if they commercialise the AI digital replicas, the starting point should be that the AI digital replicas represent an infringement of the deceased’s personality interests. The next issue concerns the remedies available to the relatives of the deceased. Where the relatives claim that they suffered from mental distress because of the commercialisation, it is most likely that the feasor is liable for compensating for the distress caused. But if there is no real evidence that any distress is caused, for example, where the digital replica of a deceased well-known scientist is used for discretionary education purposes, a surviving close relative who opposes such use, pursuant to Articles 994 and 1019, should remain able to refuse consent regardless of any substantive damages suffered. The close relative may be able to claim pecuniary damages calculated either according to the damage suffered by them or the economic gains of the feasor. In practice, in cases where the portrait infringed is that of a deceased, the court will, usually in support of the claim, order an apology, request that the use be immediately ceased, and the amount of compensation is determined, often abstractly, based on various factors, including the extent, placement, duration, manner, and scope of the defendant’s use of the deceased’s photos, voice and name, as well as the degree of subjective malice and the specific circumstances of the infringement.⁵⁰

Regarding the use of a deceased individual’s photos, videos, voices, and traits to create a digital replica for private use, as commonly seen in the AI ‘resurrection’ industry, the matter is somewhat less complex. AI ‘resurrection’ products and services can provide comfort and healing to the living and should generally be promoted and developed. This method allows people to experience better empathy and greater solace through a vivid and rich medium which aligns with the principle of technology for good although it is critical that the practice is properly regulated. As long as the necessary authorisation from relatives is obtained and the use is restricted to the relatives or people close to the deceased, the use of the technology should be subject to less legal controversy in respect of private law.

As discussed, the close relatives of the deceased possess the authority to provide consent or to disapprove of generating an AI digital replica in relation to the use of the deceased’s portrait. In the unlikely event that where there are conflicting views among the close relatives, such as that the deceased’s spouse, disagrees with the provision of images, videos and data to the service provider while the deceased’s children are in favour, the protocol should adhere to the hierarchy established in Article 994 of the Civil Code. Consequently, the preferences of ‘the spouse, children, and parents of the deceased’ should be respected sequentially. Unlike scenarios where a third party seeks to exploit the deceased’s representational interests—allowing any of the spouse, children, or parents to initiate legal action against the third party—here, the law should prioritise the opinion of the ‘closest’ relative as defined in the Civil Code. This approach aligns with the principle that the remaining personality interests of the deceased are most intimately connected to the nearest living relative.

While the process of ‘resurrection’ can offer emotional solace and fulfilment to some, this assumption cannot be made for all. Often, some may withhold consent for the creation of such replicas due to privacy concerns and discomfort with the concept of a ‘benevolent lie’. The relevant issue is how service providers can and should protect the extensive personal information and data provided by the purchaser and so processed. As to be discussed in the next section, this includes managing the information in compliance with the confidentiality obligations and addressing other regulatory challenges effectively.

Regulating AI resurrection service providers

The first regulatory aspect relates to the deceased’s personal information. Essentially, AI ‘resurrection’ involves creating a digital clone by studying existing images, voices, and speech of the individual. In Chinese law, the video, image, and language data of the deceased are considered personal information as they can be used to identify a natural person.⁵¹ Article 49 of the Personal Information Protection Law stipulates: ‘Where a natural person dies, his or her close relatives may, for their own lawful and legitimate rights and interests, exercise the rights such as to consult, duplicate, correct, and delete the relevant personal information of the deceased, except as otherwise arranged by the deceased before his or her death.’ This provision grants close relatives access to the deceased’s information. If the deceased had expressed a wish for their information not to be used by relatives or others, the law will respect the deceased’s intent.

Assuming that the deceased did not express a contrary view, the close relatives are presumably permitted to use and transfer the personal information to an AI ‘resurrection’ service provider. Although the Personal Information Protection Law does not explicitly allow the transfer of the deceased personal information to some third party, the rights listed are not intended to be exclusive as is clear from the legislative language. In this context, it appears that so long as their rights and interests are lawful and legitimate, as for their own solace, rather than, for instance, to commercialise a digital replica of the deceased who may be a public figure, the personal information should be capable of being legally used and transferred to the service provider from the close relatives for the creation of an AI digital replica for private use such as mourning.

Unlike the General Data Protection Regulation of the EU,⁵² the provisions in the Personal Information Protection Law are applicable to the personal information of deceased persons. For instance, Article 49, it requires that information processors must not allow consultation of a deceased person’s personal information if explicitly requested by the deceased prior to their death. Upon collecting the deceased’s personal information, the service provider becomes legally recognised as a ‘personal information processor’ and thus assumes responsibility for their personal information processing activities, taking necessary measures to ensure the security of the processed information.⁵³ Relevant restrictions and obligations are outlined in the personal information law. Fundamentally, the law states that a personal information processor may not process personal information without the individual’s consent.⁵⁴ Beyond consent, personal information may only be processed under limited circumstances, such as for employment or statutory functions. This constitutes one of the regulatory challenges or at least ambiguity in the AI ‘resurrection’ business. Currently, most users of AI ‘resurrection’ services did not obtain prior consent from the deceased, primarily because this is a nascent industry. Another possibility is that many accidental deaths occur unexpectedly which prevents prior consent.

The question is whether close relatives should be able to give consent if the deceased had specified how their personal information should be used, or if the deceased was silent on the matter. The present author contends that the deceased’s wishes should be respected if they explicitly opposed such use. However, if the deceased was silent, then close relatives should be able to consent to the use of personal information for this private purpose. The rationale is that if broader legal principles as contained in the Civil Code as discussed above recognise that close relatives can effectively consent to the use of portrait rights, the same should apply here, despite the Personal Information Protection law not explicitly addressing this issue. But since the representational personality interests constitute a type of personal information, the deceased’s wishes should not be overridden, although it is notable that, in the domain of organ donation, the Civil Code provides that if a person did not express opposition to donation while alive, their spouse, adult children, and parents can collectively decide to donate after their death.⁵⁵ Whether the same should apply to AI ‘resurrection’ requires a balance of ethics, which is beyond the scope of this article.

In practice, however, even without exercising the rights to consult, duplicate, correct, or delete the deceased’s personal information, the close relatives often possess enough photographic or audio-visual materials to create a sufficiently convincing digital avatar that effectively mimics the deceased. The personal information used to create these digital avatars is often provided by close relatives, rather than directly sourced from the deceased digital remains. Typically, the relatives possess photos, videos, and voice recordings of the deceased, which they can either process themselves or entrust to the service provider to create the digital avatar. From a normative perspective, the specific regulations governing personal information should primarily apply to the AI ‘resurrection’ service provider, rather than imposing excessive restrictions on the relatives’ legitimate use of memories of the deceased. Personal details such as preferences and traits, which are essential in modelling an ideal digital replica, are usually obtained via a rather detailed survey or interview to be completed by the relatives.⁵⁶

Another important aspect of the use of personal information relates to the discontinuance of AI ‘resurrection’ services. In principle, pursuant to Article 47, the AI ‘resurrection’ service should ‘voluntarily delete’ the personal information if it ‘ceases the provision of products or services, or the retention period has expired’ or when the individual withdraws consent.⁵⁷ If it fails to do so, the individual shall have the right to request it or to delete the personal information.⁵⁸ In many AI ‘resurrection’ services, the service provider maintains an extensive database of personal information used to create the AI avatar. Each interaction between the user and the AI avatar allows the avatar to theoretically learn from the input and perpetuates data accumulation.⁵⁹ An issue arises here as many relatives can be hesitant to delete the digital replica entirely. Compared to building knowledge models, such as text-based models, constructing models that replicate a person’s personality, values, and lifestyle is considered technically significantly more challenging.⁶⁰ The avatar accumulates extensive memories and interactions over time. Deleting the digital avatar would necessitate reconstructing it from scratch, which can be very time-consuming and costly, and is not purposeful for the service. As such a deletion would erase the accumulated memories of interactions with real-world individuals, fully deleting the extensive personal information processed in creating the AI avatar would essentially erase the training memory. The point at which the provision of AI ‘resurrection’ services ‘ceases’ is not readily apparent as it is practically the developers who retain control over how long the digital replica persists.⁶¹ As the personal information data subject is no longer alive, it is not possible for the individual to request the service provider to delete the personal information. Article 47, read together with Article 49, allows the close relatives to require the service provider to delete the personal information so processed.

The second regulatory aspect concerns the governance of deep synthesis or ‘deepfake’ technology and services. As explained, the digital replica leverages AI and deepfake technology where a person in an existing image or video is replaced with another person’s likeness. The relevant law is the Provisions on the Administration of Deep Synthesis of Internet-Based Information Services (the ‘Provisions’) promulgated in 2022. ‘Deep synthesis technology’ is defined as ‘the technology that uses deep learning, virtual reality, and other synthetic algorithms to produce network information such as text, image, audio, video, and virtual scene’,⁶² including text and speech generation, face generation, face replacement, character attribute editing, image, and video generation, and the generation of digital characters such as three-dimensional reconstruction.⁶³ It is evident that AI ‘resurrection’ services employ ‘deep synthesis technology’ as defined and the entity that provides and uses AI ‘resurrection’ services to produce the digital replica is a ‘deep synthesis service provider’ and a ‘deep synthesis service user’ under the Provisions.⁶⁴

There are a number of obligations imposed on deep synthesis service providers under the law. For example, they are to ‘independently conduct security evaluation or authorise professional institutions to do so’ if they ‘generate or edit biometric information such as face and human voice’.⁶⁵ They are required to ‘inform the edited individuals according to the law and obtain their separate consent’ if they edit their biometric information such as face and human voice.⁶⁶ This aligns with the law as contained in the Civil Code and the Personal Information Protection Law. In a similar vein, the same rules of consent should apply where the close relative should be capable of providing consent in the normal circumstances. On personal information management, deep synthesis services providers shall ‘strengthen the management of training data and take necessary measures to ensure the security of training data’.⁶⁷ They shall ‘regularly review, evaluate, and verify the mechanism for generating synthesis algorithms’.⁶⁸ Other more general requirements include the prohibition of using deep synthesis services to produce information that contravenes the law or administrative regulations,⁶⁹ formulating and disclosing formulate and disclose management rules and platform conventions,⁷⁰ and setting up convenient portals for user complaints, public complaints, and reporting.⁷¹

In the AI ‘resurrection’ context, it is most relevant that Article 17 requires that ‘if a deep synthesis service provider provides the following deep synthesis services, which may lead to confusion or misunderstanding by the public, it shall make a prominent mark in the reasonable place and area of the generated or edited information to remind the public of the deep synthesis’. In other words, the ecosystem where the AI digital replica interacts with the real world should ‘prominently’ indicate in a reasonable place that the impressions shown to users are generated via deep synthesis. There is a phenomenon where AI businesses, tasked with constructing the digital replica of the deceased, assume that they are not causing confusion because the end-users know the digital replica does not exist in the real world as they requested its creation.⁷² However, in scenarios involving emotion and human interaction, it is crucial that the audio-visual information generated is flagged as AI-generated regardless. The concern is that some individuals, such as the elderly or the younger children of the deceased, may believe the digital replicas are real and not computer-generated. This false impression can be one of the reasons children and the elderly become deeply attached to the service which then prompts their fee-paying family members to maintain the subscription due to the emotional value it offers to them. On the other hand, the argument is that if flagged as AI-generated, the whole experience loses its appeal and authenticity, and the service providers contend that it is not ‘public-facing’ and is intended to be used merely by the loved ones of the deceased.⁷³

Third, as a generative technology, AI ‘resurrection’ services are regulated by the Interim Measures for the Administration of Generative Artificial Intelligence Services (the ‘Interim Measures’). As its name suggests, the existing provisions are intended to be interim and a more comprehensive law on generative AI is on the legislative agenda. The Interim Measures define ‘generative AI technology’ as ‘models and related technologies with the ability to generate text, images, audio, video, and other content’.⁷⁴ Any organisation or individual that uses generative AI technology to provide generative AI services is a ‘generative AI service provider’.⁷⁵ A ‘user of generative AI services is defined as ‘any organisation or individual that uses generative AI services to generate content’.⁷⁶ Pursuant to the definitions, AI ‘resurrection’ service providers are most likely to be considered as a user and a provider of generative AI services at the same time.

The obligations stipulated in the Interim Measures are comparable to those outlined in the Provisions on Deep Synthesis. For example, Article 12 of the Interim Measures provides that a generative AI service provider shall label the generated content such as images and videos in accordance with the Provisions. Article 4 of the Interim Measures provides that the legitimate rights and interests of others shall be respected where infringement upon the likeness rights, reputation rights, honour rights, privacy rights, and personal information rights of others are prohibited. Chinese courts have consistently held that using AI technology to transfer one person’s facial image onto another’s body, or vice versa, without obtaining consent or authorisation, constitutes an infringement of the other person’s civil rights.⁷⁷ Both the Interim Measures and the Provisions require that the services adhere to the relevant regulations on personal information protection.⁷⁸ Additionally, both necessitate the filing of generative AI and deep synthesis algorithms with the authorities if the services possess ‘public opinion attributes or social mobilisation ability’.⁷⁹ Violations of the Interim Measures and the Provisions are liable to administrative penalties.⁸⁰

The more relevant and distinctive aspect of the Interim Measures is that it expressly requires service providers to ‘sign service agreements with users of generative AI services who register for their services, specifying the rights and obligations of both parties’.⁸¹ While in general civil law it is possible for a contract to be concluded orally,⁸² this provision appears to require service agreements to be in writing and excludes the possibility of oral service agreements which should help clarify and ascertain the obligations of each party from time to time during the subscription period for the AI ‘resurrection’ service. The mainstream generative AI technologies’ types of rights ownership typically are that the rights may belong entirely to the user, the rights may belong to the user but with usage restrictions based on specific circumstances, or the rights belong to the service provider. The service agreement has to clearly outline the rights, responsibilities and obligations of the parties, including those related to the rights to the generated content and personal information protection. The unique nature of AI ‘resurrection’ services theoretically suggests that every situation is specific and should be tailored to the individual’s circumstances. However, most parts of the service agreement remain likely to be composed of standard terms. According to Article 496 of the Chinese Civil Code, when standard terms are used in a contract, the party providing these terms must uphold the principle of fairness in defining the rights and obligations of the parties. They must also reasonably draw attention to any provisions that significantly impact the other party. If the provider fails to perform this duty, leading the other party to overlook or misunderstand a clause affecting their interest, the affected party may claim that such a clause is not part of the contract.⁸³ From a compliance perspective, AI ‘resurrection’ service providers must exercise caution in concluding the service agreements. The involvement of personality interests and personal information is likely to be scrutinised closely by the courts. For example, the service agreement should specify matters such as who owns the rights to the digital avatar created and detail the permissible uses of the avatar where the terms should be reasonable and fair.

Concluding remarks

The article has considered in depth the private law and regulatory aspects of AI resurrection with reference to the Chinese experience. Private law concerns the rights and obligations of private persons in their legal relationships against one another while regulation concerns the relationship between the State and private entities where emerging technologies often require regulatory approaches seeking to play a game of inevitable ‘catch up’.⁸⁴ The development of AI ‘resurrection’ as a business, also referred to as ‘griefbots’⁸⁵ or ‘ghostbots’⁸⁶ is set to have a significant impact within the realm of ‘grief tech’ and ‘death tech;. As technology advances, the means and materials for expressing and conveying longing continue to evolve. The more interactive and visually intuitive AI ‘resurrections’ tools serve to provide comfort and solace to humanity. The law should keep pace with the advancements and adopt a cautious but inclusive approach. Just as ‘grief tech’ raises a lot of important ethical issues, the promise of the law is to deal with the ethical issues with a degree of certainty and most importantly to protect the rights and interests of both the living and the deceased. Matters such as the deceased’s consent to the use of their information in grief tech such as AI ‘resurrection’ require close attention either within the existing legal frameworks or otherwise. With the advent of generative AI, we now possess the ability to transform our deceased loved ones into digital entities. Whether such services are monetised or not, their primary and exclusive aim should be to support individuals in coping with the loss of loved ones and the law is to ensure that this intent is not to be compromised.

Footnotes