We are holding increasingly valuable items online, but the law as to how such items pass on our death is far from clear. However, Google has become the first of the large internet service providers to address this problem with the launch of a tool that will allow users to pass their Google-run accounts to loved ones after they die.
Digital assets can include software, downloaded content, and even online gaming and gambling accounts. In Britain alone, The Economist has estimated holdings of digital music may be worth over £9 billion. It is, however, important to distinguish between what is an online asset and what is personal data and who can access your online accounts after you die.
Google has addressed the issue by announcing on 11 April 2013 that users can now specify which of their “trusted contacts” can access their accounts after they die, or alternatively to direct that their accounts be deleted. The wishes will be implemented after a fixed period of inactivity (a minimum period of three months). The wishes are set up through the “settings” option for the relevant account and effectively allow users to create an online Will. The tool applies to Google-run accounts such as Gmail, YouTube and web album Picasa.
Prior to this, it was uncertain whether family members would be permitted to access a loved one’s online assets and personal data after death, and this remains the case in respect of accounts with other internet service providers. The problems this can lead to are highlighted in the case of Benjamin Stassen in the United States of America.
The Case of Benjamin Stassen
Benjamin Stassen committed suicide in late 2010 without leaving a note. As personal representatives of his estate, his parents sought access to his online records for an explanation as to why he committed suicide. They contacted Google and Facebook asking the companies to release their son's passwords so that they could access his Gmail and Facebook accounts. Google complied but for months Facebook refused on the grounds of privacy. It was only after the Stassens threatened further legal action that Facebook allowed them access, and even then it was on the basis that the Stassens did not share the content with third parties. Facebook made clear that they were making a unique exception and their policy remains that a user’s account cannot be accessed by their heirs after death.
Most online service providers bind users by their terms of business. Personal representatives can close a Facebook account or turn it into a ''memorial page'' but cannot access it. Google will supply executors with copies of e-mails from a Gmail account but again will not allow access to a deceased user's account.
Benjamin Stassen's parents obtained a Court Order forcing Google and Facebook to give them access to their son's records. Google complied with the Court Order. However, whilst the Order released Facebook from their duty of client confidentiality, the company is standing by its policy of not allowing personal representatives access to accounts, and to date has not allowed the Stassens access to their son's account.
You can see why Facebook did not want to grant Benjamin's parents access to his personal data. The law in relation to privacy is a tricky one. The law in the US is, of course, different to the law in England and Wales. In England there is no specific law about privacy. Article 8 of the Human Rights Act 1998 is often cited by celebrities in relation to a breach of privacy, but this only applies to state bodies and not individuals and there is no specific case law about the release of personal data to executors or personal representatives.
The emergence of cloud computing has led to assets being stored on remote servers which may be located in jurisdictions outside the UK. For example, Apple's i-Cloud which stores music, films, TV and any other downloads made by a user together with e-mails and personal data. Apple's policy is to delete all e-mail and data from i-Cloud following the death of a user. However all content downloaded on its i-Tunes service is subject to a licence which can be revoked on a user's death. It is not clear how Apple will treat downloaded content following a user's death but it seems that they would have the right to revoke the user's licence and delete potentially valuable content.
As digital assets are not tangible property it seems unlikely that a person could bequeath their online music collection to beneficiaries in their Will in the same way as they would could leave, for example, their C.D. collection. This is because the C.D. collection is a physical object which can be left in a Will whereas digital assets are not defined by law in the same way.
Clearly the law in this area has not yet caught up with technology. However, enterprising companies have exploited the gap in the market for bequeathing digital assets. For example, Legacy Locker allows people to store online passwords so that executors and personal representatives can access online accounts following their death.
Creating an inheritance for your digital assets and data
The best way to deal with online assets and personal data is to leave specific instructions in a Will stipulating that executors may have access to online accounts and whether these accounts should be deleted after death. As a Will becomes a public document after death, it may not be wise to include passwords in the Will itself, in case a third party gains access to dormant accounts which have the same passwords. However, a Letter of Wishes, which is a personal document to executors, could be written setting out usernames, passwords and specific wishes in relation to individual accounts. In addition, those who have Google-run accounts should also update their settings for the relevant account to mirror the same wishes in case there are any problems with beneficiaries accessing the accounts with details given in the Letter of Wishes.
If a user has especially important online assets or data, such as valuable emails or photos, it would also be wise to create a hardcopy of these or save them to a disk or memory stick. Hardcopies can pass under a Will as physical property and will pass to whoever inherits the user’s personal effects (or the user can name a specific person to inherit them).
However notwithstanding these steps, executors are at the mercy of service providers and problems may be encountered if service providers do not recognise the consents given in a Letter of Wishes. There may also be jurisdictional issues at stake. However, for the present (or at least until other service providers follow Google’s example or a test case is taken), setting out express instructions in a Letter if Wishes gives the user the best chance of enabling his loved ones to inherit his personal digital effects.
Fay Copeland, Head of Wedlake Bell’s Private Client Team, discusses the issues with accessing a deceased’s digital assets in her monthly column in Private Client Adviser magazine. The column can be accessed here and was first published in Private Client Adviser in June 2013. It is reproduced by kind permission (www.privateclientadviser.co.uk).