'My sister died about a year ago. She had and still has a Facebook account.'

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Our resident consumer champion Fergal Crehan explores digital legacy

This week, we got a slightly different email into consumer@todayfm.com and with Fergal's background in all things data related, we asked him to explore the matter of digital legacy.

The email reads...

Hi there,

I need your help. My sister died about a year ago. She had and still has a Facebook account. Her account is still active, and we would like to close it. I have already followed what I believed were Facebook procedures for dealing with such things but to no avail.

I sent them some details earlier this year, and told them I wanted them to contact me on a phone number provided. I attached a copy of her death certificate, which I was also not too happy with.

To date, no one has contacted me and her account is still open. What I want is Facebook to close her account, and to find what they did with her death certificate. I know of other families in the same situation and who also want a resolution, so any advice would be great.

Thank you.

Fergal has this advice...

Facebook offers a service called “memorialisation”, where the content already posted stays up, but new content can't be posted. Also, memorialised accounts can only be accessed by the user’s confirmed friends – no new friends.
The word Remembering will be shown next to the person's name on their profile
Automated activities, such as daily quotes or horoscopes, are stopped, and memorialised accounts don’t appear in “public spaces” such as birthday reminders, People You May Know, or searches, so you don't have to deal with friend requests and so on.
Content the person shared (ex: photos, posts) stays on Facebook and is visible to the audience it was shared with, and depending on the privacy settings of the account, friends can share memories on the memorialized Timeline. In some cases people can find this upsetting – I've heard for e.g where teenagers have died, their Facebook page cam become a focus of very intense expressions of feeling, which though well meant can be upsetting for parents.

The other option is a full deletion of the account. What's not clear is what happens to the data when this happens. FB have in the past been criticised for their very grabby Terms & Conditions which asserted ownership over your data, whether you deleted it or not. This is contrary to Data Protection law, which says that you own all your own data, and FB are just processing it. However, Data Protection law only applies to living persons. There's every possibility that you might still own copyright in some of this data, which is an inheritable asset. I imagine this will eventually become an issue when a celebrity dies and his/her estate wants to continue to monetise their online profile after their death.
In order to avail of either of these options you need to fill out an online form. Interestingly, the memorialisation request only demand a link to an obituary, whereas the removal request wants a death certificate and proof that you are a relative.
When I was looking into this, I came across a similar story in the Guardian – a reader had tried to memorialise his late wife's account and nothing had been done, despite several requests, six months later. That article said that
“there is no way for the average user – or even the average journalist – to talk to Facebook. The only thing you can do is repeat the process, as you have done, until it eventually gets through the system”
It also estimated that 3 million Facebook Users die per year, about 60,000 per week, and pointed out that if it's taking 6 months to process these, then its system isn't up to the task. So it looks like our listener isn't the only one to run into this problem.

Digital Legacy

This issue of what happens to your online accounts and assets after you die has been discussed for almost as long as the internet existed, and is referred to as “Digital Legacy”. The Law Society in the UK has urged people to treat it like any other kind of legacy, and include it in your will. That would certainly solve a lot of the problems, but not all of them, and anyway, people often don’t make wills until late in their lives.

However, where people are able to face what we call “end of life planning”, in future that will probably include pulling together passwords for various accounts and services, and making them available to a next of kin. Obviously, many of us don;t have that luxury and those of us that do are often not keen to even think about that kind of planning.

Even for those who do, the Terms & Conditions of many services don’t allow you to pass things to next of kin in this way. With many media now available in digital form, there’s a move away towards ownership and towards licensing. So where you owned a collection of records or CDs, you are only a licensee of, for e.g. your iTunes, which means you cannot legally bequeath your iTunes library even if you do include them in your will

However, the Ts&Cs do allow you to share your content with up to 6 family members, so that takes care of the practical concerns

Additionally, if the person's iTunes library is in the latest iTunes Plus format then the tracks are not DRM protected and could by anyone who has access to their computer. This is also how most other music services work. MP3 format doesn't come with any kind of DRM, so it's as transferrable as a word document or an Excel file

Also, I believe that in practice, if iTunes customer services are contacted about a deceased iTunes user they will usually agree to transfer ownership you can provide:

- A copy of the death certificate of the current account holder.

- A legal document confirming you have the right to transfer the deceased's property.

With Kindle the position is slightly different, Amazon say that you can give someone your kindle at any time and hand them over the login, so that they can continue to access the books. They insist that a kindle account never closes. This raises the possibility of kindle accounts passing from generation to generation, accumulating vast libraries over lifetimes of reading.

There's also the question of privacy. What did the deceased person actually want know and not known about their lives? I suppose it's like the question of reading someone's diary. Some people would, others wouldn't. I came across a story of an American couple who wanted to access their late son's accounts to help find out why he took his own life, and I did wonder whether that was necessarily a good idea for them.

Where a will is being contested, someone might allege that certain relevant documents were being held on an email account or cloud service. They might be able to obtain a court order accessing them. A court order will always override the terms and service of a company, but only in the country in which the court order is made.

You can listen back to Fergal below, and if you want to get in touch with him, it's consumer@todayfm.com...