A turning point in digital immortality

A turning point in digital immortality

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.

Amy Bradbury is a reputation protection senior associate at Harbottle & Lewis

How to settle your loved one’s digital estate

Giving up the ghost online and what it means to you

A GHOST tour in Edinburgh was where I first discovered the morbid truth about why Victorian headstones often had bells attached.

Buried by mistake? Ring urgently for service.

We’ve come a long way since then, and thanks to modern medicine can be certain when someone’s been ‘called home’ before doing the needful.

If you’re squirming a bit in your seat at the thought, it’s natural. The D word is nobody’s favourite and talking about it is the biggest slap in the face to any healthy dose of self-denial about what’s at the ‘end of the line’.

Anyway, let’s say you are doing a bit of planning and you’ve sorted out what to wear, who to invite and all that, then as a child of the Digital Age you must also put on your ‘to do’ list who can access your social media accounts and other digital assets when you’re gone.

Apparently it’s a bit of a grey area in legal circles and they want to do something about it.

At the helm is the NSW Law Reform Commission which his reviewing laws affecting life beyond your digital death.

Initially they’ve called for submissions from the legal profession and later in the year the public can throw in their two cents worth (and for those born after 1992, when the two-cent coin was demonetised, it means your opinion).

When making the review public, Attorney General Mark Speakman said: “In today’s hyper-connected world, an unprecedented amount of work and socialising occurs online, yet few of us consider what happens to our digital assets once we’re gone or are no longer able to make decisions.

“This is leading to confusion and complexity as family, friends and lawyers are left to untangle digital asset ownership issues, applying laws that were developed long before the arrival of email, blogs, social media and cryptocurrency.”

What the LRC is more worried about is who can access your digital stuff, but although it’s inappropriate to laugh at a time like this, this quote from Speakman was just a little bit ironic.

He said: “When a loved one passes away, bureaucratic hurdles and legal uncertainty are the last thing families and friends feel like confronting, so we need clear and fair laws to deal with these 21st Century problems.”

Bureaucratic hurdles and legal uncertainty are what families and friends are confronted with when a loved one passes away.

I suppose we’ve really only got ourselves to blame, being the most connected of all countries in the world. So, the review will focus on NSW, Commonwealth and international laws, including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted-decision making.

The LRC will scrutinise (their words, sounds expensive) the policies and terms of service agreements of social media companies and other digital service providers.

Facebook is at a bit of an advantage here already, having had lots of experience in this area.

On a more serious note, social media companies do handle sites of the deceased differently, from memorialising them to simply shutting them down.

Having a say in what you’d like to happen, particularly given there can be a story of a whole life recorded there, is important.

If you haven’t made arrangements for anyone to take control of your sites or access private emails, the LRC is considering whether additional privacy protections are needed.

The issue of ownership of digital assets upon death cuts across many different areas of law which is why it’s not clear and fair but complicated.

Here I was thinking I’d just leave a list of my 70,000 passwords for someone else to troll through my social media, blogs and websites if they could actually be bothered.

But really, who could forgo the opportunity to plan ahead by scheduling posts and memes to appear long after I’m gone, saying things like ‘I can see what you’re doing’ or ‘There is no Planet-B’.

Visit www.lawreform.justice.nsw.gov.au to read more.