A turning point in digital immortality

A turning point in digital immortality

A couple of recent cases suggest that we could be on the cusp of intestacy and privacy laws stepping in to help assert control over your digital footprint after death, writes Amy Bradbury

In the UK there is no specific legal framework for dealing with digital assets on death and, given we usually don’t own social media profiles (all we have is a licence to use the platform in question), it tends to be the website’s own terms which govern the position.

Some sites have policies in place for when a user dies. Twitter will work with a person authorised to act on behalf of the Estate or with a verified immediate family member of the deceased to have an account deactivated, and both Facebook and Instagram will ‘memorialise’ accounts. Facebook also allows a user to either appoint a ‘legacy contact’ to look after a memorialised account or have the account permanently deleted. However, it remains extremely difficult to get permission to log in to the deceased’s account, see messages or remove or change posts.

This was highlighted by a recent German case. It has been widely reported that Germany’s highest court has ruled that heirs in Germany have the right to access the Facebook accounts of their deceased relatives as a social media contract can be inherited in the same way as documents such as letters. The decision comes after a long battle by the parents of a 15 year old girl to access her profile, including posts and private messages, to try to find clues about whether her death was an accident or suicide. Despite having the account password, Facebook had refused access citing data protection laws and the privacy of third parties. Hailed as a landmark decision, the judgment purportedly sets aside these concerns and takes a step towards putting digital assets on the same footing as physical assets in Germany.

Separately, in the case of Sabados v Facebook Ireland Ltd the English Court required Facebook to hand over certain information to a bereaved partner. Ms Sabados brought an application against Facebook following the deletion of her deceased’s partner’s account at the request of an unknown individual. The judge ruled that Facebook had to provide details of who made the deletion request which, at the time, was unbeknown to the deceased’s family and friends. The application was brought prior to proceedings. Although currently somewhat unclear, it appears Ms Sabados may wish to assert claims relating to misuse of private information at a later date.

In this vein, a recent claim against The Sun has highlighted that publishers may now more readily accept that privacy rights subsist after death. An invasion of privacy claim was issued following the publication of topless photos of a woman in a revenge porn case. The case was settled without admission of liability but the recognition that a privacy claim can be brought after death is significant.

These cases highlight some of the knotty issues and the need for the Courts to step in. At a legislative and regulatory level, little attention has been given to what happens to data and privacy rights on death. Indeed, whilst the introduction of the General Data Protection Regulation (GDPR) in May has signified the increased importance of protecting the data of the living, it does not apply to the deceased.

There has been call for change. For example, the Information Law and Policy Centre, a research centre within the Institute for Advanced Legal Studies at the University of London has specifically identified the issue in its response to the House of Lords Select Committee on Communications’ call for evidence in its consultation on ‘The Internet: To Regulate or Not to Regulate’.

In the meantime, individuals would be wise to take certain practical steps to protect their digital legacy on death by: creating an inventory of digital assets; keeping passwords in a password manager or digital inheritance account; appointing someone to deal with digital assets on death and ensuring that social media account settings have been amended to in accordance with an individual’s wishes where options for memorialisation are available.

Amy Bradbury is a reputation protection senior associate at Harbottle & Lewis

Tips, Advice and How to Protect Your Digital Assets

Tips, Advice and How to Protect Your Digital Assets

protecting your digital assets and online legacy - tips and tricks for what to do when you die

Tips, Advice and How to Protect Your Digital Assets

Hey there and welcome. How’s your summer going? I can’t believe we are nearly back to school and autumn is upon us. Which then means Christmas. And Oreo Christmas puds! And this in turn means a lot of blog post planning and writing! It’s been three years now since I started the blog. It’s grown so much too, from a simple space for sharing fun food ideas, to a document of our lives with little B. When I think about it, there’s a LOT of stuff online that I own.

protecting your digital assetts and online legacy - tips and tricks

Trust Me, You’ll Have a Lot of Online Assets!

It’s not something I’ve really considered before but if I died, what on earth would happen to all that “stuff”?! And by stuff I mean my blog, my social accounts, my multiple email addresses, bank accounts, PayPal account, online storage, shopping, music – there’s loads! More importantly who would sort out all that stuff? By default I guess it would be the hubby but what could I do to get all my digital assets in order upfront?

To put it bluntly, your digital assets would be stuck in limbo if you don’t specific what happens with them after you die. A morbid thought I know but just have a think for a few seconds about all the things you own online. Think about the amount of passwords and user names you keep track of.

Loads right?

protecting your digital assetts and online legacy - tips and tricks

How to Protect Your Digital Assets

Today I’m sharing with you a few tips on what you can do to protect your online legacy. And also, what you can do to help out your loved ones, if they had to deal with everything online on your behalf in the event you were to die. SunLife also has a handy digital legacy tool where you can specify your digital wishes. You can also read a bit more about what happens to your online accounts if you were to die.

Start With a List

As with everything, make a list of all the accounts you own, as well as devices – so think phones, tablets, laptops, smart TVs and games consoles. From this list, you can then start documenting user names and passwords.

Have a really good think because you probably have a larger digital footprint than you think. Remember to include anything like cloud storage and back up such as Google Drive and Dropbox. Also consider online accounts for managing household bills.

protecting your digital assets and online legacy - tips and tricks

Document Email

Like most people, you probably have a few email addresses. These often serve as backups for lost passwords. Make sure you record your email details and passwords, and don’t rely just on a work email to access online accounts. Think LinkedIn. Your work email may be disconnected pretty quickly.

Estimate Value

Things like your PayPal, any crypto currency accounts, savings, pensions accounts all have a financial value. But also think about things that hold sentimental value such as photos. Even things like a blog or Instagram account with a large following will hold some kind of value.

protecting your digital assets and online legacy - tips and tricks

Assign Your List

Once you have your list, decide who takes control of these accounts should you die. You can you trust to deal with all your online accounts?

You may want to give your assigned person some sort of instructions as well. For example if you have a Facebook account, do you want it closed down?

What Next?

I know it isn’t overly cheerful but it’s probably a convo you want to have with loved ones at some point. These three tips are there to get you started.

protecting your digital assets and online legacy - tips and tricks for what to do when you die

Disclaimer: This is a collaborative post.

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How do companies deal with digital assets post death?

How do companies deal with digital assets post death?

How do large digital companies deal with subscriptions and/or accounts post death? What happens to the public’s copious amount of photos, videos, messages and documents on social media?

In as little as two years (from 2012 to 2014), the public have produced more data than in all of human civilisation before that – and is still increasing at an exponential rate.

While digital assets can take many forms such as online photos, subscriptions, music libraries, social network profiles or email accounts – the majority of us do not have physical records of them.

It is therefore not clear what people’s digital presences will look like in years to come but we can be certain that an ever-increasing number of people will be creating and accumulating more and more data until they pass away.

So, how do companies deal with such assets after death and how do they help and/or support digital estate planning?

Unfortunately, as an example, the world’s largest online retailer, Amazon, do not make it easy to find this out. However, a company called ‘Everplans’ provides instructions, advice and assistance on how to close an Amazon account when someone dies for their basic account and Amazon Prime accounts.

Everplans is the web’s leading resource for planning and organising your life, it enables you to create, store and share important documents that loved ones might need in the future in the event of death – which includes all assets in digital form. An Everplans’ Digital Estate Plan can be created in five easy steps and a digital executor appointed who carries out loved ones’ wishes for digital assets.

However, Social media do offer support and advice when it comes to dealing with accounts post death. Facebook instituted a policy a few years ago regarding how to handle profiles of deceased individuals – where family members can choose one of two options, either close it or turn the account into a memorial profile.

More and more online social networks are adopting rules to handle the situation such as Twitter, LinkedIn, Pinterest and Instagram whereby proof of death, ID and possibly form filling is required to deactivate the account or ‘memorialise’ the accounts of deceased users.

While companies are showing signs of helping and advising on how to deal with accounts after someone dies, they are still behind the times. Currently, the majority of people have to adhere to “Terms and Conditions” of each digital service offered. An example of this is Apple’s Itunes where currently everything bought expires upon death – which shows company legislation needs to catch up to reality!

As a private client professional, have you ever dealt with digital assets in estate planning?

How to settle your loved one’s digital estate

Giving up the ghost online and what it means to you

A GHOST tour in Edinburgh was where I first discovered the morbid truth about why Victorian headstones often had bells attached.

Buried by mistake? Ring urgently for service.

We’ve come a long way since then, and thanks to modern medicine can be certain when someone’s been ‘called home’ before doing the needful.

If you’re squirming a bit in your seat at the thought, it’s natural. The D word is nobody’s favourite and talking about it is the biggest slap in the face to any healthy dose of self-denial about what’s at the ‘end of the line’.

Anyway, let’s say you are doing a bit of planning and you’ve sorted out what to wear, who to invite and all that, then as a child of the Digital Age you must also put on your ‘to do’ list who can access your social media accounts and other digital assets when you’re gone.

Apparently it’s a bit of a grey area in legal circles and they want to do something about it.

At the helm is the NSW Law Reform Commission which his reviewing laws affecting life beyond your digital death.

Initially they’ve called for submissions from the legal profession and later in the year the public can throw in their two cents worth (and for those born after 1992, when the two-cent coin was demonetised, it means your opinion).

When making the review public, Attorney General Mark Speakman said: “In today’s hyper-connected world, an unprecedented amount of work and socialising occurs online, yet few of us consider what happens to our digital assets once we’re gone or are no longer able to make decisions.

“This is leading to confusion and complexity as family, friends and lawyers are left to untangle digital asset ownership issues, applying laws that were developed long before the arrival of email, blogs, social media and cryptocurrency.”

What the LRC is more worried about is who can access your digital stuff, but although it’s inappropriate to laugh at a time like this, this quote from Speakman was just a little bit ironic.

He said: “When a loved one passes away, bureaucratic hurdles and legal uncertainty are the last thing families and friends feel like confronting, so we need clear and fair laws to deal with these 21st Century problems.”

Bureaucratic hurdles and legal uncertainty are what families and friends are confronted with when a loved one passes away.

I suppose we’ve really only got ourselves to blame, being the most connected of all countries in the world. So, the review will focus on NSW, Commonwealth and international laws, including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted-decision making.

The LRC will scrutinise (their words, sounds expensive) the policies and terms of service agreements of social media companies and other digital service providers.

Facebook is at a bit of an advantage here already, having had lots of experience in this area.

On a more serious note, social media companies do handle sites of the deceased differently, from memorialising them to simply shutting them down.

Having a say in what you’d like to happen, particularly given there can be a story of a whole life recorded there, is important.

If you haven’t made arrangements for anyone to take control of your sites or access private emails, the LRC is considering whether additional privacy protections are needed.

The issue of ownership of digital assets upon death cuts across many different areas of law which is why it’s not clear and fair but complicated.

Here I was thinking I’d just leave a list of my 70,000 passwords for someone else to troll through my social media, blogs and websites if they could actually be bothered.

But really, who could forgo the opportunity to plan ahead by scheduling posts and memes to appear long after I’m gone, saying things like ‘I can see what you’re doing’ or ‘There is no Planet-B’.

Visit www.lawreform.justice.nsw.gov.au to read more.

The One Big Thing Your Estate Plan Is Missing

The One Big Thing Your Estate Plan Is Missing

The One Big Thing Your Estate Plan Is Missing

You may have great estate planning documents. You may have discussed them with your family. You may have even inventoried your digital assets and feel that your job is done. But your estate plan may still be missing one BIG thing: a “letter of instruction.”

Do your representatives know what to do?

Managing an estate is a tough job. If you died today, would your Successor Trustee or other representatives even know where to start? Where is the key to your safe-deposit box? Where are your car titles? What is the combination to the floor safe? Where is the abstract of title to your home? What are the passwords to your computer and other online accounts?

A letter of instruction is meant to help guide your representatives through administering your estate after your death. Imagine that you could stand over the shoulders of your spouse or children or other loved ones and tell them exactly what needs to be done. Very likely, these individuals are going through a tremendous amount of stress and grieving. But you can ease their burden by leaving step-by-step instructions to help them through the process. That is the purpose of a letter of instruction.

What should my letter contain?

There is no right or wrong way to prepare a letter of instruction. A few ideas were mentioned above. Include a list of where your assets are located, how to access your accounts, where you keep important title documents, etc. These pieces of information are essential to managing any estate.

However, your letter can provide even greater detail. What subscriptions (cable, newspaper, lawn service) need to be canceled? What are the names and phone numbers of your advisers (financial, medical, spiritual, insurance) that should be contacted after your death? How can your representatives contact your family to let them know of your death? Where would you like your funeral held? Do you have a preferred program for your funeral? Do you already have an obituary prepared?

Your letter can also include instructions for distributing small items of personal property that have low market value — but high sentimental value — to your family. You may wish to distribute these items to certain beneficiaries rather than having them sold with your other property as part of an estate sale. Letting your representatives know about your wishes could keep these items from being lost forever. Remember, however, that your letter of instruction can only voice a preference for how you want untitled personal property distributed. All gifts of titled property must be made through proper legal documents.

Talk to an attorney about a letter of instruction.

Estate planning involves more than just legal papers. It is also about more than just your own well-being; it is about providing for your loved ones after you are gone. To discuss how you can take care of your loved ones after your death, contact the Oklahoma City estate planning attorneys at Postic & Bates for a free, no-obligation consultation appointment.

As a bonus, click below to download our FREE Estate Planning Guide for access to over 70 pages of information about estate planning and probate:

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]