“It’s something that many of us avoid thinking about and that’s why 2016 Best Will Week (31 st October 2016 – 4 th 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 […]
Although this is a post about digital death, it is not meant to be morose or anything. I just occasionally think of this problem, and while discussing it privately with Jim Groom (co-founder of Reclaim Hosting) recently, I thought it might be worth asking other academics what they are thinking of doing about this. My two questions are:
- What happens to a person’s website on their own domain when they die? (currently – it basically dies)
- What happens to a person’s digital purchases (Kindle, Audible, iTunes, etc) when they die? (currently, they go back to Amazon/Apple)
The first question might seem an arrogant one to ask – how important is my blog anyway? But I also think about a lot of other academics whose blogs I value, and whose blogs I occasionally cite in peer-reviewed articles of mine. If their blog or website is on, say, wordpress.com, their website will live on as long as wordpress.com exists; if they write in a journal/magazine, their content will probably outlive them; however, if it is on their own domain, this means their website/blog will only live as long as they keep renewing the hosting and domain name. This could end within their lifetime (e.g. not being able to use a credit card for some reason), but will almost definitely happen after they die. At the moment, this is something some of us are thinking about, but I have not yet heard a solution to it. What could one do? Leave a small fund for our heirs to pay to renew the hosting? Pay someone like Reclaim Hosting in advance for a few years? Convert our website into a PDF and pay to host it somewhere safe? Like maybe our university’s repository (if they value our blogging as much as our peer-reviewed writing)? What about non-academics? And no, the Way Back Machine is not really a full solution to this problem, because, as I understand it, it saves webpages not entire websites.
The second question is probably one that more people should be concerned about. I have books that my grandfather had left my father. My child currently reads books that were mine as a child. What happens to all my Kindle books after I’m gone? I pay so much money for Kindle books, and yet the only obvious way to pass those on to someone else is to either give them my phone/iPad (already logged onto Kindle and has access to the cloud) or give them my Amazon.com password – but those don’t seem like good solutions – hardware has a limited lifespan, and the password solution? Imagine accumulating all those passwords from generations of relatives. And what about if I wanted to give my academic books to a colleague and the children’s books to my child? I’m also thinking about my iTunes library. I lived through the time of seeing my parents’ vinyl records (useless by the time I was born), audio and video cassettes (nearly useless by the time I finished college) and CDs/DVDs (still in use, but much less so than downloadable purchases). I recognize that media and hardware change constantly and that even if we pass music/video onto future generations, formats may become obsolete. The paper on physical books becomes yellow and fragile but you can take care of books and we know they can last. Cassettes or such can be digitized. But DRM material? At the moment, there is no easy legal way to pass this stuff on. These are apparently questions others have asked – I found a Wikipedia page on digital inheritance, with references you may want to check out. It seems like a waste of money to buy a Kindle book if no one will be able to read it other than me (side note: lending is allowed for some books; maybe inheritance can be managed the same way).
What is ironic in all of this, is that what does remain after you die are your Facebook, Twitter and LinkedIn profiles. Because… yeah… those spaces representing your identity actually belong to Facebook, Twitter and LinkedIn, rather than you.
As many people spend more and more of their lives online, preparing for what happens to your digital assets after death is becoming increasingly important, lawyers say.
According to Dan Nelson, a partner at Civis Law LLP, your digital legacy can be valuable on an “emotional,” “reputational” and even “financial” level.
“It’s the obvious things, your Facebook, your Twitter, your blog,” he said. “And it’s much more detailed things. It might be your online gambling account. It could be something embarrassing like your Ashley Madison account. Or it could be your World of Warcraft account.”
Often, Nelson said, account providers will shut down accounts after they learn that the owner is deceased.
But this could lock loved ones out of troves of meaningful photos, blog posts or even lucrative online holdings.
Because of this, Nelson encourages social media users to consider working their digital assets into their wills.
“We certainly want to include language in the will to empower executors to extract this digital data,” he said.
However, Nelson warned not to include passwords in wills, as that could void your agreement with the account provider.
“We have providers who say ‘if you sign up for our account, it’s our account,'” he said. “You are prohibited from sharing that password and if they catch you, it’s grounds to terminate the account.”
When a person dies, friends and relatives must decide whether to delete all the deceased’s data or to ensure the digital survival of the deceased. A huge amount of data and information is collected about people during their lifetimes, and the growth of professional and personal social networks (eg, Linkedin, Facebook, Instagram and Google+) is increasing this phenomenon.
Existing legal void
As the digital era continues, an increasing number of social network user accounts belong to deceased persons. The French data protection authority, the Commission Nationale de l’Informatique et des Libertés (CNIL), has estimated that 1% of all Facebook profiles worldwide (130 million profiles) belong to a deceased person.
During their lifetimes all people have the right to access, modify and delete their data (eg, photos, lifestyle and professional data). However, these rights attach to the person and do not continue when he or she dies.
Unlike inheritance law, which recognises heirs as the continuation of the deceased person, in regard to digital matters the heirs have no right to stop the use of processed data or recover data if the deceased person expressed no last wishes.
Only Article 40 of the Data Protection Act (78-17) deals with the data of deceased persons, and simply provides that “the heirs of a deceased person, providing proof of their identity, may… require the data controller to take the death into account and update the data accordingly”.
Given the challenges posed by digital data and information, in communications of October 29 and 31 2014 the CNIL evoked the balance that must be struck between the right to be forgotten and digital immortality.(1) However, the CNIL highlighted that it was not its role to arbitrate on this issue, and therefore called on the public authorities and internet stakeholders to debate this issue. Some scholars have suggested that inspiration could be drawn from the regime governing the transmission of copyright after death, which allows the transmission of personality rights.(2)
Bill for Digital Republic
In response to this issue, the government has published the Bill for a Digital Republic, which proposes to supplement Article 40 by allowing a person to “set instructions relating to the retention and disclosure of his/her personal data after his/her death”.
Therefore, before people die, they may decide how they “wish their rights under this Act to be exercised after their death”. The instructions may cover all processing of the instructing party’s data or only specific data.
Most importantly, the bill provides that in the absence of instructions, the “heirs may exercise the rights of access, rectification and opposition after his or her death”. Therefore, if the bill is passed, heirs will be allowed to inherit certain personal rights.
Lastly, the bill creates a new obligation for all data hosts, which will have to inform users as to what will happen to their data after they die and allow them to choose whether to pass their data onto a designated third party.
Consequences for economic operators
If the bill is passed, data controllers will have to deal with new constraints and new types of request.
Indeed, even though it is hosts, publishers and digital platforms which will primarily be affected, any data controller may have to deal with requests from trusted third parties or heirs and set up measures to ensure that requests to access, modify or delete reflect the deceased person’s last wishes or the heirs’ wishes. This will not be an easy task, and it is likely that the CNIL will often be called on to intervene in difficult circumstances.
Therefore, estate planning should take these new digital issues into account, and it would be entirely appropriate to address them in wills. As a result, notaries will have to consider these new issues when drafting documents. Users need to ask themselves a very real question about the virtual world: digital oblivion or digital eternity?
For further information on this topic please contact Matthieu Dary or Alexandre Diouf at FIDAL by telephone (+33 1 46 24 30 30) or email (firstname.lastname@example.org or email@example.com). The FIDAL website can be accessed at www.fidal.com.
Making plans for what happens to our online presence after we pass away could save our loved ones unnecessary pain and distress, say probate experts.
Research suggests three out of four people have not thought about how their family will access and manage their social media, email and online financial accounts when they die.
Lynda Monks, a senior Wills and Probate solicitor at Macks Solicitors in Middlesbrough with 30 years’ experience, warns this can store up problems for the future.
“When a loved one passes away it leaves a huge hole in our lives and so many emotional challenges to overcome,” she said. “There are also the practical issues that must be dealt with, such as sorting out financial affairs.
“In the past there would have been paper documentation to help track down all the accounts and any assets such as stocks and shares, but increasingly this is no longer the case.
“In the modern digital world we often hold many accounts with different PIN numbers, passwords and digital access codes. We rarely think to give the information about what they are and how they can be accessed to anyone else.
“This can lead to enormous difficulties for those who are left behind and can really add to the distress they are feeling at an already difficult time.”
A recent survey by The Co-operative Funeralcare revealed that 78 per cent of those who have looked after a loved one’s online accounts after death experienced difficulties, while a fifth were unable to manage the process at all.
Lynda added: “Talking about what should happen if you die before your partner or other relatives isn’t an easy thing to do, but it is very important to let someone know what accounts you hold, how to access them and what you would like to happen to them.
“As a recent survey highlighted the fact that the UK population now owns £2.3bn of Internet assets, it’s essential to leave instructions regarding your digital assets – your family could be very grateful that you did.
“Making a Will is one very practical way you can make plans for the future and make it known what you would like to happen to your assets. Another practical step is to consider your ‘digital legacy’. Many people mistakenly believe it helps if they include this information in their will.
“However, your Will becomes a public document when it goes through the probate court, which could mean sensitive information being read and exploited by fraudsters.
“A better solution would be to leave a sealed letter containing details of your online accounts, as well as PINs and passwords, along with your Will at your solicitor’s office. In this way your confidential information is only available to your Executors.
“Many of us already let our families know what kind of funeral arrangements we would like, so why shouldn’t we also make plans for our digital future as well? In today’s technological world, we need to consider the rights of access to our online life and assets.”
As well as leaving details of financial accounts and how to access them, other questions to consider include whether you would want your next of kin to have access to your social media accounts and whether you’d like a status update or online post to let friends and followers know you’ve passed away.
Social media accounts such as Facebook, Twitter, Instagram and LinkedIn will all need to be closed or turned into memorial pages after your death. Facebook recently changed its policy to enable users to appoint an online executor who can maintain their account posthumously.
You should also think about what you’d like to happen to your email accounts, any digital music, photographs, films or books you own or money held in online gambling accounts.