A will is no longer just for distributing your worldly possessions. With so much of life being handled online, it’s likely you have digital assets that need to be addressed in your estate plan. From your Paypal account to your music library, this digital footprint can live on for […]
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.
There has been a trend in recent years, both in literature and in life, for Scandinavian concepts that are encapsulated in a single word. Hygge, for example – which is Danish for cosiness, contentment or well-being – dominated the publishing industry in 2016.
Now, the new buzzword on the block is “dostadning” – a hybrid of the Swedish words “death” and “cleaning”. How much these fad words are actually a part of Scandinavian culture is debatable, but dostadning is the new phenomenon outlined in Margareta Magnusson’s The Gentle Art of Swedish Death Cleaning. In Europe, the book has already occupied a good deal of reviewing space and according to Time magazine, dostadning will be the hot new trend stateside in 2018.
Magnusson’s book chimes with the current anxiety about clutter in the 21st century. Dostadning advocates the proactive and mindful clearing out of possessions before death. The idea is that it saves relatives the onerous task of making decisions about what to keep and what to throw or give away. The book reflects the simple fact that we are all living longer lives. This results, of course, in more stuff.
But it also means we have more time to get rid of things. We can start planning for our death by slimming down what we leave behind – shedding unnecessary objects in favour of what we actually need. It is the antithesis, perhaps, of the ancient Egyptian tradition of being buried with things that might accompany us into the afterlife.
Magnusson’s top tips for dostadning focus mostly on material possessions – though she suggests keeping a book of passwords for family so they can access online data more easily. But this is no straightforward task, given that more and more of our data – photos, letters, memories – as well as actual things – music and books – exist in digital rather than analogue form. And as more of our lives are logged and lodged virtually, chances are our relatives might not be able to access it.
A documentary about this precise issue aired recently on BBC Radio 4. My Digital Legacy was part of the We Need to Talk about Death series and featured terminally ill patients with an extensive digital footprint who rely on the internet – especially on social media – to connect to the world around them. The programme also heard from bereaved relatives who experienced difficulties in accessing data, including Facebook profiles, of loved ones after their death.
The death manager
My recent short story How To Curate a Life, published by Storgy Books in the anthology Exit Earth, deals with precisely this issue. Set in the not too distant future, the parents of a young woman killed suddenly in an accident try to commission Jesse – a “digital death manager” – not to curate her life but to erase it: to gain access to her files then destroy them.
In this fictional world where everyone is required to dictate the terms of their digital estate, it is illegal for Jesse to tamper with the girl’s online content. And yet, the financial reward would mean freedom from his desk bound job forever.
The story grew from an idea I found online about careers that will be ubiquitous in the future. Digital death management, it seems, is definitely set to become “A Thing”. And just as we now commission solicitors or will writers to oversee our material estate – there will come a time when people will also hire someone to clean up their digital footprint
In our already busy lives, does tending to our online existence give us one more thing to do? Perhaps so. But it’s about taking responsibility for our own stuff. If we don’t make the decisions about what to keep or discard – whether actual or online – then ultimately others will need to. And if we don’t leave clear directions about where to find our digital content, it makes things tougher for everyone.
As Magnusson writes, death cleaning is “a permanent form of organisation that makes everyday life run smoothly”. What better legacy to leave behind than to ease the bereavement process for the ones we love?
The eternity option: preparing for your digital afterlife
What sort of digital footprint do we leave when we die? It is an issue that is very much of our age and – depending on your viewpoint – can be either a problem or an opportunity.
It’s an interesting place, the digital afterlife. We now have the first generation, at the formative end, whose entire existence has been in the digital era. At the other end of life’s great journey we also have a first generation that is sufficiently digitally savvy to leave more of their life’s clutter on the PC rather than in the attic.
What if that PC is lost, password protected, one of many, or appallingly (or very individually) organised? And, of course, what about all the digital information that is not on that PC but floating around in the cloud, or in other people’s data sets? What if you want to leave your own glowing profile after your death, or conversely are concerned about some of those less flattering Twitter comments?
Not surprisingly in this day and age, there is increasing attention being paid to these issues with an industry developing around them, often with the creativity coming from app developers. E&T asked some of the new breed of experts and innovators to comment on the main topics around how to deal with your digital legacy.
The most obvious digital legacy is the one you leave on social media. Most platforms have a simple means of removing a social media profile within the account settings. Only a few might consider this a priority in an end-of-life scenario and, anyway, delete doesn’t necessarily mean it’s gone.
Evan Carroll, speaker and author of ‘The Digital Beyond’, says: “Rarely does deleting the account actually delete all of the data. For instance, Facebook retains the right to hold onto the data in case you want to reactivate your account. Facebook also retains any messages you’ve sent to others as it would be odd for those items to be removed from someone else’s account. Theoretically, if someone had your username and password, they could reactivate your account. I would imagine that the information would be released under a court order as well.”
Editing of social media to portray a life of fun and frolics is not just for dealing with profiles of the deceased. “People do this all of the time,” says Carroll. “I would argue that we’re constantly ‘adjusting’ the image of ourselves we project online to suit our own self-image, even if this image isn’t entirely objective.”
Taking control of a deceased relative’s digital profile is generally straightforward but there may be additional security questions to contend with. Without the password it becomes more difficult. “It depends upon the policy of the site,” claims Carroll. “For instance, Facebook will allow a family member to request deletion or anyone can request memorialisation. Generally, one will not be able to access an account without the password, as most sites have policies against granting access to heirs.”
Keeping a site active as a memorial can be a source of comfort, but also is open to abuse. In general Carroll thinks they are worth keeping: “People often come together on these sites as a source of communal bereavement. In most cases, save extreme circumstances, the comments are mostly positive.”
What of all the historical posts and conversations that may be on the same site – are they worth preserving or do they potentially distort the true memory of the individual? Carroll believes it is down to that person: “This is the big privacy question surrounding social media after death. In the physical world, we were forced to make decisions to discard things. In the digital world, we can allow it to pile up. I understand both sides of this question and believe the real solution is for people to take ownership of their own digital footprint and actively decide what should be kept and what should be discarded.”
Recognising the need for services to deal with digital lives and deaths, many start-ups have developed some innovative tools. America, unsurprisingly, is the place to find the biggest variety of such apps but there are plenty springing up in the UK as well. One of these, Lexikin, has released its version of the ‘digital vault’.
The digital vault is a place to store all the essential information that needs to be passed on, typically to the next of kin. Simon Stewart of Lexikin describes the information that should be collected: “Some ‘vaults’ simply store memories and passwords. We encourage clients to record assets, wishes, memories and legacies in case of fire, theft or death, so it’s actually useful when you’re alive as a complete asset management tool.”
Trying to create such a resource oneself is clearly possible, but requires very careful management of passwords, diligent data storing and a robust plan for providing access to the information on death.
Maybe, as Stewart suggests, having a structured vault would change the way people treat their data and automatic tagging of household bills or photos would perhaps store them in the appropriate place. Stewart says: “I agree with the notion that ‘business will never move as slowly in the future as it does today’, as tech is changing our lives so dramatically. Yes, digital storage is becoming more mainstream and different age groups are using Lexikin for different purposes.”
The service has safety checks in place to verify that once the company has been alerted to someone’s death by a next of kin, it contacts the executor, confirms the death and ID using an international ID fraud check company, and can then proceed according to instructions.
There are a lot of start-ups in this arena, and there are no historical references to judge how permanent these companies are. So what should people consider when choosing? “Look for companies with regulated partnerships, especially with large firms to guarantee longevity,” says Stewart. “Larger companies have to do significant due diligence on small company partnerships to protect their brand.”
What if anything happens to Lexikin? Is the vault lost? Stewart responds: “If our HQ is nuked, the codebase is backed up and our legal and insurance partners would get the keys to ensure continuity. Both are regulated firms, to ensure client security and privacy.”
Cyberspace possessions should not be sneezed at either. US research claims the average American has more than $55,000 of digital assets and this has grown by over 10 per cent per annum in recent years. But who owns these assets after death? Stewart says: “US law is different to British law. If I bequeath a digital asset to my next of kin, in UK law it belongs to them. In US law the company might have ownership rights.”
If in doubt, the best course of action is simply to write suggesting that your satisfaction with their response will be shared on social media – such companies hate to be embarrassed in this way.
Sometimes, people have pastimes that they are not particularly proud of and would not want to be associated with after their death, including unpopular views about race, politics, sexuality and so on. So how do you protect your data?
Evan Carroll of ‘The Digital Beyond, says: “There’s no guaranteed way to prevent your data from being seen by others in the future. You can certainly make it harder by using encryption on your devices and not sharing your password. If this is a concern for someone, I would suggest taking care to delete their history on a regular basis and consider using unique passwords for every device/account.
“It’s quite easy to reset a password on Mac and PC platforms,” Carroll continues. “If the drive is encrypted, however, resetting the password will also prevent access to the encrypted files.”
Emails are difficult to protect, because they’re often hosted on a server and the passwords can be easy to discover or reset. What’s more, once an email has been sent the recipient has a right to keep it. Carroll says: “The best way to protect emails is to use a service like Yahoo, where it prevents access by heirs or Gmail where you can choose what happens to your account using its Inactive Account Manager.”
Equally, messages sent through social media remain with the recipient until deleted by them, but retrospective post removal is easy and can prevent a build-up of unflattering comments.
Could the ‘keyboard warriors’ who troll internet forums be posthumously revealed and associated with distasteful comments? “This is a possibility,” says Carroll, “but a more remote one if they’ve remained careful creating obscure email addresses and not attaching them to their exact identity.”
How about those involved in organisations or activities that may or may not be legal, but could definitely be deemed distasteful? Carroll advises: “My best suggestion would be to handle these types of activities in a separate account from your professional or personal business. However, the best way to keep something away from the digital world is to not share it in the first place.”
As stated above, a Facebook page can usefully remain open after death as a moment in time, a memorial page for friends and family to share their grief, support and thoughts, and even as an active page going forward. That person’s death may have, for example, resulted in ongoing charitable work, a continuation of that person’s projects or hobbies, or as a way of uniting groups and maintaining contact.
However, new services are emerging that allow the deceased to still play a part in online society. One of these is GoneNotGone, which will send posthumous messages to loved ones on birthdays, anniversaries or other special days.
Peter Barrett of GoneNotGone explains the purpose of such a service and what sort of information should be considered. “This is an important question and more important is what not to think about. This is not a service for bank account information, online login information etc – this should be handled by legal professionals with your will. The aim of the site is to bring relief and hopefully fun.
“We want messages about love, uplifting stories, stories of what life was like at the same age by grandparents. One example talks about where someone’s name came from. For religious people, scriptures are good too.”
Even Barrett concedes that people’s first reaction is often that the idea is creepy, one person described it as ‘digital haunting’, but the reaction from those who have lost someone close is typically better than from those who have not. He says: “One person described how he had an answerphone message from his father which he kept and often played back until it was accidentally wiped and he was most upset to lose it. A few people have also said, ‘I wish my mum (for example) had signed up when I told her about this, now it is too late’.
“I think as we get some success stories and people can see the value it will become more commonplace. However, we are dealing with death and people typically put off anything associated with death, such as their wills. People have to face their mortality for a moment to sign up. This is sad, as the people who can benefit the most are those who lose a parent suddenly, possibly due to a road accident. With our service they could still be getting birthday messages and jokes from their parents; it is almost like a digital insurance.”
Going a step further it will soon be possible to actively participate in the digital world long after your participation in the real world has ended. Although still in its beta stage, ETER9 claims to be the network that never sleeps – and nor do its members, if so desired.
It relies on an artificial intelligence (AI) system that continuously learns from its users. The element, called ‘Counterpart’, will keep virtually interacting with other users when the user is offline. This activity will be all the more efficient the more information the system has about the user – through normal users’ interactions. ETER9’s Henrique Jorge says: “If a user decides to keep his counterpart active for eternity, he/she will keep the virtual extension of him/herself alive forever.”
Counterparts continuously learns with users’ interactions, absorbing users’ behaviours, personalities and actions. If you are habitually happy, then your Counterpart will be also. If your social media posts are more on the grumpy side, then your Counterpart will reflect that, and no one can alter that other than the user. “Friends and family are able to tweak your real personality,” claims Jorge, “and this can reflect the behaviour of your virtual self, since it learns from your real self. This is the only way others can actually change your personality.”
It is an interesting example of technologies merging, AI with social media, and Jorge believes it has huge potential as people log on to their network to find out not just what their friends have been saying, but also what their own Counterpart has been up to while the real person is offline. However, people have fought and died for the rights of the individual and freedom of thought, are they really going to be willing to be defined for eternity by something they have no control over?
“People won’t be defined for eternity by Counterparts,” says Jorge. “Counterparts will be defined for eternity by people! While users are present, they have total control of their Counterpart. They can interact within the network as they wish. And if they want to be ‘digitally immortal’, their Counterpart will continue interacting and posting according to their patterns.
“Everybody will notice that the owner of the Counterpart is not there, and the Counterpart’s behaviour will be different – the Counterpart is an extension of the human, not THE human. On ETER9, you decide the present/future of your account: you can shut down your Counterpart’s functionality while you are offline (and physically alive), you settle its level of autonomy and it’s up to you turn on/off the ‘Eternity’ option.”
So, there is an option at the click of a button – eternity on or off?