Digital Life after Death – When it comes to your Will, have you thought about your Post Mortem Digital Assets?

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“It’s something that many of us avoid thinking about and that’s why 2016 Best Will Week (31st October 2016 – 4th November 2016) from mylegacy.ie is such a great idea. With so many solicitors around the country signed up to help the public prepare their wills and offer advice on possible charity legacy bequests, it’s a good time to make an appointment to get the job done. However, there’s something new for us to consider in 2016.

Regardless of age, we’re living online more than ever before. And that’s why we really need to think about what’s called our Digital Assets when preparing our will. Otherwise, living on digitally is a real prospect if not properly managed. The concern about a Digital Afterlife is one we’re hearing more and more about from clients at both our city centre and in Stillorgan office” That’s according to Eileen O’Gorman, apartner with long established Dublin law firms Gleeson, McGrath Baldwin (www.gmgb.ie)

In a digital world where your Facebook page may be memorialised and your music collection caught in a cloud, have you considered your digital assets? Exactly what are they, where they are located and who can access them once you depart this world?

Also, how much can you exercise control of your social media content from the grave? And where do you begin?

Eileen O’Gorman offers several practical pieces of advice:

  1. The starting point (as with all issues that affect your online activity) is to read the terms and conditions – especially those of your favourite social media platforms
  2. To ensure your digital legacy, convert digital assets to physical assets.
  3. Identify if you have the right to pass on these Digital Assets at all or are they likely to be as intangible as your post mortem spirit?

1. Terms and Conditions

Some providers have developed hands on management tools such as Googles plan for your digital life after death and Facebook’s memorialisation feature. Did you know that following a few simple steps you can appoint a legacy contact through this Facebook feature to give a trusted party the ability to select certain data for archive, memorialise or terminate your account?

Some accounts however will be automatically terminated as a result of inactive use and where this happens you need to consider if there is content you may want someone to have.

Whether you want to terminate your online existence on death or use a platform like LivesOn so that “When your heart stops beating you keep tweeting”, you need to consider these assets and the terms of service that govern their location and access to them.

Sites like DeadSocial provide a platform whereby messages can be created and saved for publication to your Facebook or Twitter profiles after death. LivesOn uses artificial intelligence algorithms to keep your tweets coming from beyond the grave. If you don’t want to maintain a ghostly presence on your social media you may think that all this will no longer concern you. But think again. But You may not want to actively provide post mortem social media content but your social media presence does not automatically terminate on death. To the contrary, many of your accounts and profiles may remain very much alive and subject to abuse in the absence of your or someone else’s custodianship.

2. To ensure your digital legacy, convert digital assets to physical assets.

This can be done by downloading items and content to a physical device, which can then be passed on. Just make sure it is not password protected and if it is that you’ve left the password also. We would never encourage downloading digital assets in breach of a licence for use. There is a handy feature on Facebook to download your Facebook content. I regularly update my iCloud content and download it onto a terabit external hard drive to ensure my photographs, videos and other mementos are available for my family and friends in the future.

There have been cases, mostly in sad and tragic circumstances where the next of Kin have sued for access to a deceased emails or social media content. While service providers face big data protection and privacy issues when presented with such requests they are also faced with a moral and ethical dilemma. You may not want the content of these accounts to be made available to any third party no matter the circumstances or you may wish to have an option to preserve your digital assets or indeed bequeath it.

3. But do you have the right to pass on these Digital Assets at all or are they as intangible as your post mortem spirit?

With regards to online digital assets it is important to understand whether death is dealt with in terms and conditions of use but it is equally important to consider whether items you pay money for or acquire are actually purchased or merely licenced for personal use. Certain digital books, music and other items are licensed for use only and there are several legal restrictions on the transferability of such licences. Therefore, passing on digital assets may not seem as easy as you think.

For example, if you buy a CD then you have a tangible physical asset that you can gift during your life or bequeath on death. You may buy a music download but this does not give you the same rights as you get by buying the CD (unless of course you take further steps, which may not be legal or within the terms of your licence for use). A download is generally the purchase of a licence to listen, read or watch and that licence will always come with restrictions against, rental, lending or sharing and in many circumstances the licence will terminate on death.

Your log in and passwords are personal to you, will not be freely divulged to a third party (even if you have bequeathed the content to which they apply) and in some terms of service sharing your login and password are a breach of the terms of use and will result in termination of the contract. Therefore, while many such digital assets will be lost in the cloud many are simply not freely available for your next of kin under terms of the licence.

Eileen O’Gorman added: “It’s predicted that by 2020 the average person be it a digital native or digital immigrant and will subscribe to about 200 online accounts. That’s why we advise clients to not forget the digital dimension and manage it effectively.”