What happens to your online life when you die?
South Africa currently has no existing legislation dealing with what happens to your data after death.
This is according to Philippa Marques, candidate attorney at Webber Wentzel, who said that there is no legislation giving an executor access to a deceased’s online accounts.
Marques noted that not every website has a policy regarding death. While some websites will observe a family’s wishes, others may not take action without a death certificate or court order.
“While many social media websites have implemented death policies, even with these policies in place, many accounts remain dormant for many years after a user has passed away with family members unable to access them,” the legal expert said.
Webber Wentzel pointed out that users sign up to social media websites on the understanding that their privacy, including username and passwords, will be protected.
This means that social media websites would be in breach of their own policies if asked to disclose those details to family or friends of the deceased.
“For that reason, many social media websites, including Facebook and Twitter, have a policy that no one except the account holder may access an account, even after death,” Marques said.
In terms of its policy, Webber Wentzel said that Facebook will never release login information to anyone other than the account holder, even after death.
The Johannesburg-based law firm said that family members of a deceased have two options – they can either request that the account is deleted permanently, or request that the account be memorialised.
Before an account can be permanently deleted or memorialised, Facebook requires proof that the account user has died, either in the form of an obituary or news report.
Facebook will then monitor the account for activity and verify the death before starting the conversion process.
“If no one contacts Facebook to alert it that a user has died, the profile will remain active indefinitely,” Marques said.
Twitter will also not hand over a deceased’s login details due to privacy rules, Webber Wentzel said.
To close a Twitter account, a verified family member or executor must submit paperwork including an identity document, the deceased’s death certificate and a signed statement requesting that the account be deactivated.
Twitter can provide a copy of the deceased’s public tweets on request, Webber Wentzel said.
Getting access to a deceased’s email account can be a lengthy process and may require the family or executor to obtain a court order, Webber Wentzel warned.
In 2013 Google implemented an “Inactive Account Manager” which enables Google users to set up a process in which ownership and control of an inactive account is transferred to a delegated user.
However, if a user has not set up the Inactive Account Manager, in order to gain access to a Gmail account, the family of the deceased or executor may have to obtain an order from a US court.
“This is because websites like Facebook, Twitter and Google are situated in California and their terms and conditions indicate that all dealings with them must be done in terms of the laws of California,” Marques said.
Preparing for digital death
“Until South Africa implements legislation dealing with these issues, we recommend that our clients prepare for digital death,” Marques said.
“Your family should know how many accounts you have and what you would like to do with your digital accounts after death. You should use your will to stipulate how you want your data used once you have passed on.”
The legal expert recommend including a clause in your will authorising someone to access your digital data after death and authorising the companies storing your data to disclose it to a designated person.
“While this would not give your family or executor the right to access your accounts, it should help facilitate the process of requesting copies of your digital data.”
It is also worth thinking about writing a separate digital will with a list of your accounts, user names and passwords, Marques said.