Digital Legacy - UK Legal Guide

Digital Legacy – UK Legal Guide

selling goods or services, or keeping in touch with family members and sharing memories, the majority of this happens on the internet. When it comes to , these virtual accounts and online property are just as important as the physical items we can see and touch, such as houses and jewellery.

digital-legacy-succession-planning

Succession planning is where people lay the foundations for what is to be done with their belongings when they pass away. Almost everything that a person could own can be accounted for: the family home, antiques, photographs, family keepsakes and even pets. Items that an individual accumulates over the course of a lifetime are normally organised and included in a will, and distributed among their surviving family members and friends.

However, thanks to advances in technology, many of the things that people use in daily life are online. Bank account details, social media passwords, email information, and even music downloaded via the internet can be owned by a person. Strange as it may seem, all of these are incredibly important but are often overlooked when people start to plan for what is to happen with their property when they die.

What Will This Guide Cover?

  • An introduction to digital legacies and what is meant by digital assets
  • The importance of planning what is to be done with digital assets after death
  • An overview of the different areas of law that may apply to a
  • The terms and conditions that commonly apply to a deceased’s online account
  • The inclusion of digital assets in a will and protecting account details

What Questions Does This Guide Answer?

  • What are digital assets?
  • What are the risks of not making a digital legacy?
  • Which laws are relevant to digital assets and legacies?
  • Can an online account be easily passed on or deactivated?
  • What are the terms and conditions of commonly used online organisations?
  • How should a digital legacy be created?

What Are Digital Assets?

  • Digital assets are things that most people deal with almost every day. For example:
  • If a person downloads music from iTunes and stores it on their computer, this music is a digital asset.
  • If someone uploads pictures to Facebook or Instagram, these are digital assets.
  • If a person uses online banking facilities to organise their finances, these details are a digital asset.
  • If someone uses social media, the account(s) that they operate are digital assets.

For many years, digital assets were largely ignored when it came to planning for what is to be done with a deceased’s property.

There are different reasons for this, such as people simply did not attach much value to online information or they forgot that this information was still someone’s property that had to be organised.

Increasingly, people are being encouraged to make plans for what is to be done with their digital assets on their death. This is for two main reasons: this data is still deemed in law to be property which needs to be dealt with; and much of this data can contain personal and, at times, sensitive information which should be handled carefully.

What Are the Risks of Not Making a Digital Legacy?

  • There are potential risks if a person does not plan for what is to happen to their digital assets:
  • People often operate multiple email accounts: email accounts for work; accounts for personal use; email accounts for high street discount advertisements; email accounts for financial details. As a result, multiple usernames are often used, which are attached to different corresponding passwords. If these details are not logged and accounted for when someone passes away then it can be very difficult to gain access to these accounts.
  • Individuals may have ongoing financial arrangements linked to their bank accounts, for example, magazine subscriptions or gym memberships. If the details of these accounts are not available then it will be difficult to cancel or close them down. The accounts will continue to be billed, and the funds, which could have been used elsewhere, could be drained. Charges may also accumulate if there is no money to pay the bills.
  • Data that is stored online will ultimately remain there unless someone removes it. It may not be important to some people, but finding a picture online of a loved one that has passed away can be a very painful reminder of their loss. Details of social media accounts should be included in succession plans to ensure that pictures and information can be withdrawn from the internet or ‘memorialised’ in some form.
  • With the ever present risk of hackers to online accounts, leaving a Twitter or Facebook account left unattended for a length of time can pose problems. A social media profile can be used by hackers to spread spam messages, generate spurious content and, in some instances, even commit crimes, for example, discriminatory statements. This can result in the memory of the deceased being tarnished because of a hacker’s actions.

Which Laws Are Relevant to Digital Assets and Legacies?

The best way of thinking about social media profiles and electronic media or music libraries is to consider them as a kind of intellectual property. No one can physically touch a profile that has been created on Facebook or Twitter, as it can only be accessed via the internet.

The same too can be said about electronic media files. They do not exist in the sense that you cannot reach out and touch them and move them from one place to another, other than through use of a computer. When someone creates these profiles or collections they tend to be specific to an individual.

Electronic media files and music downloads fall squarely into the area of intellectual property (IP). Usually, when music files are purchased online via iTunes or a similar program, it is not the song itself that is being sold, but rather a right to download, store and use the song. This will vary according to the organisation in question, but licenses are very much a part of IP law. Therefore, as with most aspects of IP law, licenses are specific to an individual. Problems arise when the person who they relate or belong to passes away. This is why a plan should be put in place which details what should happen to those licenses.

Online bank accounts are slightly different. Although they cannot be physically touched and can only be accessed online from the use of passwords and usernames, they are normally only made available to customers of a bank as part of a contract. This is why they fall under contract law not IP law. In practice, it makes little difference how bank accounts are viewed, as they are particular to an individual. A plan should be made detailing what is to happen to these accounts when the person who uses them passes away.

Can an Online Account Be Easily Passed on or Deactivated?

Having a digital profile of any kind (for example, Twitter, Facebook, Instagram or Flickr) is a bit like buying a product or service. In signing up to use the resource, individuals are agreeing to terms and conditions. The difficulty is that many companies have very strict terms and conditions when it comes to passing on usernames and passwords. Most organisations will not provide anyone but the owner of the account with passwords and usernames, even those who have genuine concerns regarding a deceased’s online account. This is why it is incredibly important that this information is documented and kept in a safe place.

What Are the Terms and Conditions of Commonly Used Online Organisations?

Listed below are the practices of some of the most commonly used organisations when dealing with an account belonging to someone who has passed away.

  • Facebook

Organisations like Facebook normally advise that the passing on to third parties of usernames and passwords is a violation of their terms of use, given that they themselves would not pass on this information. However, there are other options available. Facebook offers a service where an individual’s online profile can be preserved or ‘memorialised’ upon receipt of a ‘valid request form’, which is available online. Facebook requires proof of death, for example, a death certificate or a copy of an obituary in a newspaper.

  • Apple

Unlike Facebook, which is a free service, music which is purchased and stored on Apple’s iTunes is a service which is paid for. Generally speaking, this kind of data or digital asset can be passed on to a successor or heir, but different organisations have different rules. Apple will technically only licence the right to use music to an individual that has purchased a song via iTunes. However, Apple operates a service where this licence can be transferred upon receipt of proof of death and entitlement to the deceased’s assets.

  • Instagram

Instagram makes very clear in its terms and conditions, specifically its privacy statement, how it deals with accounts of people who have passed away. It asks that relatives of the deceased get in contact with the company via email to request that the account is deactivated. Similar to Facebook, all of the communication will likely take place via email. Instagram will need proof of death, for example, a death certificate, before it deactivates the account.

  • Twitter

Twitter has a very similar practice to that of Apple when it comes to dealing with users’ accounts. As a matter of company policy, Twitter will not share details that will allow access to a user’s account – regardless of whether it is a close or not. However, it will accept requests to terminate the account. It will require proof of death along with other information specific to the account. This is listed on its website and includes:

  • The username of the deceased account holder
  • A statement detailing the relationship between the deceased and the person seeking the account’s deactivation
  • Details that identify an account as being that of the deceased
  • A copy of the deceased’s obituary
  • Google

Google operates a policy where relatives or friends of a deceased account holder can contact them with details of the deceased and evidence of their death, and request to access an account to delete or alter it. However, Google does not guarantee that every request will be honoured but does stress that every request will be carefully reviewed.

Google has taken a very pragmatic approach to dealing with user accounts: it encourages users to engage in forward planning. In April 2013 it launched an ‘inactive account manager’ which allows users to tell Google what is to be done with their account after it has been left inactive for a period of time.

  • Yahoo

Yahoo does not accept requests to access users’ accounts. Yahoo operates a policy where those wanting to terminate a deceased person’s account must provide the deceased’s unique Yahoo ID. They must also have evidence that they have been authorised to act as the representative of the deceased. This should be accompanied by a death certificate.

  • PayPal

PayPal, like Google, has also taken a fairly pragmatic approach to dealing with accounts of people who have passed away. If someone wants to cancel a PayPal account of the deceased, it is the executor or administrator of a person’s estate who needs to organise this – not family or friends of the deceased.

To close an account, PayPal requires the executor to provide the following:

  • Details of the deceased and a request from the executor for the account to be closed.
  • A copy of the death certificate.
  • Legal evidence (for example, the will) that proves the executor is who they claim to be.
  • A photograph of the executor.

How Should a Digital Legacy Be Created?

When planning for the future and what is to be done with a person’s assets, it is best to speak to a solicitor to decide how the digital assets should be organised. Planning for what is to happen when someone passes on is not new. However, including digital assets in a will is something that many people are, understandably, still getting used to. When making a will, it is best to include the details of all assets – physical and digital – to ensure they are accounted for.

As mentioned earlier, many digital assets require usernames and passwords before they can be accessed. It is not advisable to include these details in a will. This is because a will is a legal and public document that should not contain sensitive details like how to log in to a bank account or social media profile. This information should also not be stored on a computer or left in a family member’s home as it will be vulnerable to hacking and theft, which could cause a great deal of distress for the deceased’s family.
It would, however, be useful if these details could be given to someone who can be trusted, for example, the solicitor who is preparing the will. A database could then be attached to the will, which details the services used and the relevant information related to them. This information will only be divulged on death. This will ensure the relative safety of important information, and make it is easily accessible when needed.

It is always advisable to mention email accounts, bank accounts, social media profiles or even music libraries in a will, regardless of how trivial they may be. The account can then either be deactivated or passed on to the relevant person when the account holder dies.

Key Points

  • A digital legacy is the online information and assets we leave behind when we die
  • Examples of digital assets and data include legally downloaded music, pictures uploaded to social media and online banking facilities
  • It is possible to decide how virtual accounts and online property will be accessed, managed or distributed when we die by providing for them in a will
  • Digital legacies can cover many different areas of law, in particular, succession, intellectual property and contract
  • When music files are purchased online, it is not usually the song itself that is being sold but a license to download, store and use it
  • Online organisations have different procedures for allowing another person to access or delete a deceased’s online profile or assets
Eleanore

Eleanore

Main curator on Digitaldeathguide. Supported by a bot. Some articles may need to be weeded, don't hesitate to tell me !