Digital legacy: A legal dilemma if not included in the Will

Digital legacy: A legal dilemma if not included in the Will

The concept of property has undergone plethora of changes, with the emergence of social networking platforms. The photos we share, the posts we make are our digital property. Every person now-a-days has a part of himself online, and the family and friends would want to preserve this legacy too after a person is no more. We have a lot of memories stored online which our loved ones would want to preserve. Digital assets also include music, films, email accounts and computer game characters.

In a very recent case of Toronto based Alison Atkins, the sixteen years old lost a long battle with colon disease. Her sister had a technician crack her password protected Mac Book Pro, as her family wanted to access her digital remains like her facebook, twitter, yahoo and hotmail accounts, which were her life line during her illness. Alison had pictures poems and messages written on these inline forums which her family wanted to preserve.

However, accessing Alison’s accounts without her authorization was an act of unauthorized access and punishable by law.

Under the Information Technology Act, 2000, it is a violation of Section 43(a) and Section 43(b) of the Act.

These provisions read as under:

Section 43: If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network,-

(a) accesses or secures access to such computer, computer system or computer network

(b) downloads, copies or extracts any data, computer data base information from such computer, computer system or computer network including information or data held or stored in any removable storage medium.

-shall be liable to pay damages by way of compensation to the person so affected.

The unauthorized use of Alison’s passwords violated the website terms of use and provisions of cyber laws too. None of the service providers allowed the Atkins family to recover her passwords and access her accounts as that would amount to a violation of her privacy. The attempts of the Atkins family to recover the digital remains of their daughter fell apart as facebook and all the other service providers started to block them out.

The digital era adds a new complexity to the human test of dealing with death. Loved ones once may have memorialized the departed with private rituals and a notice in the newspaper. Today, as family and friends gather publicly to write and share photos online, the obituary may never be complete.

But families like the Atkinses can lose control of a process they feel is their right and obligation when the memories are stored online—encrypted, locked behind passwords, just beyond reach. One major cause is privacy law. Current laws, intended to protect the living, fail to address a separate question: Who should see or supervise our online legacy?

In 2009, Facebook began to allow family members to either delete or “memorialize” the accounts of the deceased. In a memorialized account, the people on a person’s existing friend list can still leave their comments and photos with the account of a dead person. But nobody has permission to log in or edit the account. However, this could also lead to cases of cyber defamation where there could be defamatory posts made, and the family is not authorized to delete or edit them.

The only solution to this is that digital legacy must be included in wills, and people should leave clear instructions about what should happen to their social media, online accounts and other digital assets after their death. If we make our wishes clear now as to whether we want our digital legacy to be closed down or preserved, it becomes much easier for loved ones to comply with our wishes.


What is Digital Estate Planning and Why Do I Need it?

Digital inheritance becomes growing issue for online generation

It’s been nearly five years since Korean actress Choi Jin-sil died, but her public homepage still lives on in cyberspace.
The site now acts as a digital memorial for the nation’s beloved leading lady, as her fans continue to leave messages of sympathy and appreciation.
Though many photos and journal entries remain online, there hasn’t been a single update since her passing.
Unfortunately due to a lack of legal precedent, even Choi’s family members are unable to manage her account.

“Though there are no current laws that exist to allow family members of the deceased to gain administrative access, the personal site can still be shut down. However, some choose to leave it up.”

The matter of digital inheritance remains a hazy area of law at home and abroad.
It centers around the the fate of our digital property, such as emails, online photos and social networking messages, after we die.
In recent years, an increasing number of families have been voicing a right to reclaim their lost loved ones’ online assets.
International websites like Facebook and Twitter let users decide what they would like to do with their accounts after a period of time, whether it be giving a farewell message or deleting all information.
Meanwhile, the growing public demand for such services has prompted Korean lawmakers to push for broader policies and practical solutions to this problem.

“When you join a portal site and give your personal information, you should also be able to specify what you want to leave behind. This is why a digital inheritance law is needed.”

As we upload more of our lives online, the more significant and larger our digital inheritance becomes.
And in every case, a choice should be given to either leave it as our lifelong legacy or allow our family and friends the peace and closure they deserve.
Paul Yi, Arirang News.

Deathless data

Deathless data

LORNE GLADSTONE of Toronto is 58, but prudently pondering how to bequeath his digital property. Doing the paperwork after his parents’ death was a challenge. “When my time comes, I wonder if my children will even know what paper is,” he says. As a software developer, his virtual assets are both valuable and vital to his business. That exemplifies a problem. Online lives have increasing economic and sentimental value. But testamentary laws offer muddled and incomplete ways of bequeathing and inheriting them.

Digital assets may include software, websites, downloaded content, online gaming identities, social-media accounts and even e-mails. In Britain alone holdings of digital music may be worth over £9 billion ($14 billion). A fifth of respondents to a Chinese local-newspaper survey said they had over 5,000 yuan ($790) of digital property. And value does not lie only in money. “Anyone with kids under 14 years old probably has two prints of them and the rest are in online galleries,” says Nathan Lustig of Entrustet, a company that helps people manage digital estates.

Service providers have different rules—and few state them clearly in their terms and conditions. Many give users a personal right to use an account, but nobody else, even after death. Facebook allows relatives to close an account or turn it into a memorial page. Gmail (run by Google) will provide copies of e-mails to an executor. Music downloaded via iTunes is held under a licence which can be revoked on death. Apple declined to comment on the record on this or other policies. All e-mail and data on its iCloud service are deleted on the death of the owner.

This has led to litigation in America. In 2004 the family of Justin Ellsworth, a marine killed in Iraq, took Yahoo! to court in Michigan to get copies of his e-mails. This year, a court in Oregon ruled that another bereaved American mother could use her dead son’s password to enter his Facebook account for a short period. Now five American states have enacted laws giving executors control over the social-networking profiles of deceased users.

But this raises the subject of privacy. Passing music on is one thing; not everyone may want their relatives snooping on their e-mails. Colin Pearson, a London-based lawyer, says access should come only with an explicit provision in a will.

Such clearly expressed wishes may help. An internet law expert in New Delhi, Gurpreet Singh, has already seen a few cases of wills including digital estates. “People are slowly realising the value,” he says. A nascent industry is emerging to simplify the process. Entrustet, newly acquired by a Swiss competitor, SecureSafe, says it has 10,000 clients. It safeguards their passwords, and a list of who can access what when they die.

But laws, wills and password safes may clash with the providers’ terms of service, especially when the executor is in one country and the data in another. Headaches for the living—and lots of lovely work for lawyers.

How to bequeath Emblem3 to loved ones

How to bequeath Emblem3 to loved ones

Click here to view original web page at How to bequeath Emblem3 to loved ones

I was about to speak with my friend and author Peggy Hoyt recently about how happy I was that I completed my estate plan. I figured that getting an estate planning expert and author of books on the subject to “bless” my intentions would provide a level of confidence that I had considered everything.

“Dad, what happens to your iTunes songs and Kindle books if you pass on?”

No one can make you stop and reconsider every action you’ve ever done in life like your children.

When I informed my lovely daughter, who seemed to ask the question with less remorse about my demise, and more concern about ensuring that she continues to have access to her Emblem3 songs and Divergent e-books, that I didn’t know, it seemed that the call to Peggy would have to wait.

Did I need to be concerned about this? Do I need to consider my digital assets into my estate plan?

A recent article on the ally blog points out that, “Estate planning of digital assets is a relatively new focus for concern for both consumers and their attorneys — and something that shouldn’t be overlooked. Your heirs may not be able to find or access all of your digital assets if you don’t include them in your estate plan.”

The article states that 87% of adults use the Internet and I can’t speak for others, but I know that I have spend lots of money on songs and books that exist only in the Internet, accessible only with my password and personal information. Shouldn’t these be considered assets and something that falls under the purview of estate planning?

In the article, James Lamm, an estate planning and tax attorney at Gray Plant Mooty law firm in Minneapolis, Minn. said, “Digital assets hold both financial and sentimental value to family and friends that should be addressed in the estate planning and administration process.”

Lamm recommends that estate planning include a thorough and rigorous review of identifying a person’s digital properties and identifying which of them are “valuable or significant.”

“Additional obstacles with digital property that you don’t have with traditional property are passwords, encryption, computer crime laws, and data privacy laws. Any one of them can make it practically impossible to do anything with the digital property unless you’ve planned ahead,” Lamm said.

Listing Web assets, passwords, and all online accounts is a tedious exercise, but if digital assets exist there, you need to consider them or they will disappear into the ether, when you, ahem, do the same.

A necessary resource to assist you is the process is an article in Estate Planning magazine from May 2013 , which provides a clear outline of what items need to be considered. These include consideration of your email information, social-networking site information, blogs you maintain, online financial sites, digital photos and more.

Another resource is Lamm’s website, , where he provides great advice on the subject including explanations of the Terms of Services contracts from various online providers and how they may impact the ability for fiduciaries to access this information, even if they have the password information.

He reports that laws are changing as more people and authorities recognize that digital assets are part of a person’s estate. It’s an area that is worth watching. The ally article states that “Lamm stresses that until the laws are changed, taking the steps to safeguard your digital assets isn’t infallible. But it will make it easier to have your wishes followed if you put them in writing.”

Obviously I still have more work to do on my estate plan and with the consideration of digital assets, it’s clear that what we know about estate planning is changing. Well at least, my estate plan will look a lot different from what I originally thought and because of my book and song collections, clearly unique and different from others.

In her book, ” What’s the Deal with Estate Planning? ” (published by People Tested Publications, which I have ownership in), Peggy Hoyt makes clear that, “A primary goal of estate planning should be to create a plan that works-for you and your family. No two families are alike and no two plans will ever be alike.”

So before I consider my estate plan complete, I’ll have to consider those Emblem3 songs. Just don’t make me listen to them.