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Experts are urging us all to think about what will happen to our ‘digital footprint’ after we die

Many of us turn to the virtual world to mark major life events – graduating from school, scoring a promotion, getting married or having a baby.

But what happens to your “digital legacy” after you die?

Grieving family members and friends would no doubt be aghast to come across a nasty comment about a departed loved one on their page or see a troll attacking their Twitter account.

So as morbid as it may sound, lawyers and web experts are urging people to include specific instructions in their will about what happens to the digital footprint they leave.

“In an age where digital data has increasing economic and sentimental value, it is sensible to leave clear instructions in your will about what should happen to, for example, content after death,” said Robert Rhoda, a dispute resolution lawyer with law firm Smyth & Co in association with RPC.

Our digital is not something most people think of and tech companies are still grappling with policies to adequately deal with the issue.

It’s a relatively new area of the law, Rhoda said, adding that people should consider leaving a “digital legacy” to avoid difficulties for those left behind to deal with the issue.

“Administering digital assets and social media content is a novel legal issue,” he said.

“Leaving a ‘digital legacy’ enables your personal representatives to liaise with in line with your wishes. This is preferable to leaving passwords with relatives, which can cause them, often unwittingly, to breach laws related to the misuse of computers and data privacy.”

In Britain, the of England and Wales has started advising people to leave instructions on what should happen to their social media and other online accounts when they die in order to make it easier for family members to piece together their .

But Rhoda warned that the virtual world was not afforded the legal status of tangible assets.

“Social media accounts don’t have the same legal status as fixed assets, which form part of an estate, and it is not always clear who ‘owns’ them or, rather, who has the right to access them, once the user has died,” Rhoda said.

In recent years, several cases have emerged to test the law.

In 2005, the mother of a US soldier who died in Iraq went through a long legal battle with Yahoo to gain access to his email account.

In 2011, the family of a 15-year-old boy who committed suicide spent years in and out of court to gain access to his Facebook account, arguing that they wanted to see if there were any hints on his page that would explain his decision to take his own life.

In Australia, a recent study by a government body that specialises in wills and guardianship found that while nine out of 10 people have social media accounts, just one in five have spoken to their loved ones about what should happen to their online profiles when they die.

Lokman Tsui, assistant professor of communications at Chinese University, says there needs to be more awareness of the issue.

“This is something that is really critical but that not a lot of people have given much thought to,” said Tsui, whose research areas include new media and how policies should deal with emerging technologies.

“Some of our most private thoughts and conversations are in our emails and social networks but very few people have thought about what happens to that stuff when they die. This is a new area and there are no ‘norms’ that have crystallised about it.”

The topic raises a raft of issues involving data privacy, ownership and the security of a dead person’s account.

Tsui, who used to work at as head of free expression for the Asia-Pacific region, said the search engine introduced an “inactive account manager” last year. The feature allows the account holder to give other people access to their profile after they die.

Facebook, which has 1.3 billion users, offers two options: the account can be deleted permanently upon the family’s request or it can be converted into a memorial profile.

When an account is memorialised, sensitive information such as contact details and status updates are removed. No one can log into the account but friends and family can leave posts on the wall in remembrance.

Jed Brubaker, an academic at the University of California, Irvine who is researching death, identity and social networks, said this Facebook option was a double-edged sword.

“Memorialised profiles can be powerful places where the deceased’s social network can gather and memorialise the life of their friend,” he said.

“But in my research, unexpected encounters with deceased profiles has been the most troubling aspect of post-mortem profiles continuing to exist on Facebook.

“People can stumble across posts made to post-mortem profiles in their ‘newsfeed’, mixed in with other casual social media content. These encounters can be alarming, especially when a person is not expecting to see this kind of content.”

In its policy, Facebook says it tries to prevent memorialised accounts from appearing in ways “that may be upsetting to the person’s friends and family”.

A spokesman for Facebook, which declined to reveal how many profiles have been memorialised, said they “give people a platform to remember and celebrate the life of their loved ones after their passing”.

Instagram, which is owned by Facebook, has a similar policy to its mother company.

LinkedIn has an online form that allows a profile of a dead person to be removed and Twitter’s policy says an account can be deactivated by an immediate or someone who has been authorised to act on behalf of the estate.

Yahoo, which is popular in Hong Kong, will deactivate an account once staff can verify documents such as a death certificate. Access to the account for third parties is not allowed.

A spokesman for the Office of the Privacy Commissioner for Personal Data said that under the city’s laws, personal data was defined only as information which related to a living person.

“When the records relate to a deceased person and no living individual, they do not contain personal data” and were not subject to data protection laws, he said.

Two years ago, Hong Kong lawyer Ryanne Lai Hiu-yeung co-founded an internet start-up called Perpetu to tackle the issue.

Services offered include sending farewell messages on Twitter when you die, the deletion of your emails or their transfer to an authorised person, and deletion of your Facebook account.

The business is still operating but Lai says she is no longer actively promoting it. About 2,000 people signed up and about half were from Hong Kong.

“Most of them are in the ‘internet generation’ so I won’t say they are too young to think about death,” Lai said. “To me, this is more about life than death – it’s about how much you treasure your online presence and content that you create on a day-to-day basis.”

Richard Norridge, of law firm Herbert Smith Freehills, says the intrinsic value of our digital assets is still unexplored territory and someone’s digital legacy can come in many forms.

“It may be music or films held online, virtual currency or perhaps online accounts,” he said.”For many, it still does not form part of their thinking when they prepare their will, perhaps because those engaged in concentrate on the assets of greatest value.”

Norridge said Facebook’s memorialisation option was a fraught one. “The account is preserved in that it can still be viewed, but no one can log into that account and accounts cannot be modified. Thus if unwelcome comments are posted, they are memorialised, too,” Norridge said.

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