How big is your digital footprint? For readers not familiar with this term, it means all the traces you leave behind, deliberately or not, when you use the Internet. As more and more of our lives move online, our footprints keep expanding – and they will certainly outlive us. […]
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?