We live in a digital age. Technology has revolutionized the world and made our lives a whole lot easier. There are new questions that come to mind when it comes to using internet applications and social media platforms. As new legislature is being enacted, internet companies have refined their policies and rules. There are a number of alternatives to our digital legacy. Although much of this is typically handled by individuals without seeking help for formal estate planning, there are some people which decide to include related terms into the planning documents of their estate. This is why it has become crucial for people to explore their Digital Options for Estate Planning. The legal profession accommodates all such issues.
Social media platforms and other related sites are increasingly paying attention to how a user’s account is treated upon their death. More detailed procedures and policies are being established by service providers as new legislature has been enacted to address such an issue. As the role social media plays in our lives has become extremely crucial, companies such as Google and Facebook have started responding to these important, yet difficult and sensitive issues with regards to how should a user’s legacy come out to be. The applicable law tends to be very sparse in this rapidly developing area. Thus, many companies have made up their own rules. Even though this might not be a significant part of the formal estate planning procedure, clients have started to ask their estate planning attorneys about their digital legacy. However, it is rare for digital assets to be included in their estate planning documents. But, clients can choose to have their digital assets included in their digital legacy. Besides, there are many clients that have begun doing so.
Internet users that identify themselves as planners will likely become more familiar with post-death procedures that are applicable to social media and their overall online identity. Therefore, they have the opportunity to submit relevant forms for ensuring that all their digital post-death wishes come true. Most internet services are dealing with such sensitive issues and are working to find the right balance between being responsive to user wishes and respecting their privacy as well as attending to requests from grieving loved ones.
One of the first internet companies to deal with afterlife online matters was Google. It enabled users to select digital heirs for many of their services including cloud storage and Gmail. This led to the digital heirs being considered as inactive account managers.
Facebook made the headlines when it made the decision of changing its long-time policy of freezing accounts of deceased users to leaving their posts and pictures in order to memorialize the users while maintaining their privacy settings. Facebook now allows users to designate a legacy contact. It is a person which the user can select to manage certain areas of their account as per their wishes upon death. On the other hand, users have the option to choose to have their account deleted altogether when they die. This means that it is possible for the legacy contacts to turn the deceased user’s profile into a digital gravestone. Hence, the display posts would be shown with a profile picture that memorializes the deceased person.
Moreover, the legacy user can also respond to friend requests. There are many more options depending on the settings selected by the user prior to death. Users can designate a legacy contact who would considered as a digital heir by Facebook and will handle their will and honor its provisions. It might sound somewhat mind-boggling to think of, but has become an important part of estate planning. Thus, you now have the opportunity to designate someone to be in charge of your social media platform as well as internet activity upon death. The reason why this is a step in the right direction is because of the fact that you now have the ability to choose an heir to handle all your digital assets when you die. It is somewhat similar to the conventional planning of estate planning documents.
The state law has yet to pick up the matter. However, it is obvious that the area of privacy, account management, and succession of digital assets will be an important topic in years to come. It is important to note that Delaware had passed a legislation titled “Fiduciary Access to Digital Assets & Digital Accounts Act” which shows that it is only a matter of time until it becomes federal law. After the enacted of the said legislation by Delaware, there are many states that have followed suit and adopted similar law. It is believed that the legislation is a response to policies made by huge internet corporations that are playing it safe by restricting access to the accounts of users upon their death.
As per the Delaware law, online accounts would only be accessible by an Executor unless the decedent has instructed otherwise. Thus, the Executor would not need to spend a ton of money, effort, and time on obtaining the court order. Although the Delaware law might seem appropriate and perfectly logical, it remains controversial. There are many internet corporations and people who insist that the law provides power that it is too broad to Executors as it would violate the privacy rights of the decedent as well as the federal privacy laws in place.
It might have taken some time, but it is a good move for the estate planning laws to cover technology. Hence, the estate plan would be incomplete if no arrangements have been made regarding digital life such as transactions, files, accounts, and etc. Some of the digital assets that are covered by the law include online account information like passwords, identification, cloud account details, web domains, and the like.
As digital assets are becoming a part of estate planning. It is crucial that you conduct an inventory check of all your digital assets and digital liabilities. Next, you should consider whom to provide access to each item and the way you want your digital assets and liabilities to be handled upon death. It is a good idea to consult a lawyer to discuss about your digital assets.
The death of a loved one has always been a difficult moment but with the rise of the internet and social media platforms, families now also have to contend with sometimes-murky digital afterlife rules.
Only 13% of people have made any sort of plans regarding their social media accounts following their death, according to a 2017 survey by the Digital Legacy Association (DLA).
“Social media platforms are now understanding that they need to have an end of life policy,” James Norris, founder of the DLA, told Euronews.
“The technology they’re starting to bring in is a great start but there’s still a lot to do.
“One of the main problems when it comes to planning for your digital death and the array of different accounts that we have is that each platform is different and each requires a different way in which to manage how the account is passed on,” he explained, recommending people document their wishes in a social media will.
Below are the rules on users’s death for the main platforms.
Rules on deceased social media users
Facebook users can appoint a legacy contact who would then have access to their account after their death. That person can then look after the memorialised account or delete it.
If no legacy contact has been appointed by the user, Facebook memorialises the account when it becomes aware of the user’s passing.
Once memorialised, the account can’t be logged into and remains visible to the audience it was shared with as a place for them to “gather and share memories,” according to Facebook’s settings.
To remove a deceased user’s account, Twitter requires a person authorised to act on behalf of the estate or a verified immediate family member of the deceased to make a request or the account will be deactivated.
They will need to provide details including information about the deceased, a copy of their ID, and a copy of the late user’s death certificate, according to Twitter’s Help Centre.
Like Facebook, Google allows users to appoint a person who would be responsible for their account after their death. This so-called “Inactive Account Manager” is then able to access account information and delete the account.
If no such person is appointed, immediate family members can get in touch to request the account be deleted.
However, Google highlights on its Help page that “any decision to satisfy a request about a deceased user will be made only after careful review”.
Who Gets Your Data After Death? Accessing and Managing a Deceased Person’s Digital Remnants
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When a loved one passes away, dealing with the mundane little things is an unfortunate, and often headache-inducing, necessity. Canceling a deceased loved one’s bills and magazine subscriptions, dealing with their financial situations… And now you have to worry about your loved one’s digital affairs as well. You have to account for everything from their email inboxes to their Facebook account, and the data they left behind. What do you do with it all?
There aren’t many clear or easy ways for people to transfer their digital assets after they’ve passed on. This includes things like their iTunes media library, or even just the credentials needed to access the departed’s various online accounts. Some people have started to wonder if they should include things like passwords to their multitudes of online accounts in their wills.
It can be difficult to successfully petition the likes of Google or Apple to release information on users who have passed away. This is often true regardless of your relation to the deceased. And social media platforms keep a tight leash on their users’ login credentials, even after they’ve passed on.
Accessing Data From a Deceased Loved One’s Electronic Devices
On occasion, we here at Gillware receive calls from people looking to have data retrieved from a phone or tablet belonging to a deceased loved one. Usually all they’re looking for are photos and contacts belonging to the deceased—photos to remember them by, and friends to notify of their passing. Sometimes this data is very difficult to get a hold of outside of a data recovery lab. This is especially true when dealing with mobile devices.
When you die, all of your data stays right where you left it. Making sure your loved ones can access the data you leave behind isn’t something many of us plan for. This can leave your loved ones in a bind when you pass away and they have to deal with your affairs—both analog and digital. The trend in data storage, especially among mobile devices, is encryption and total data security. If you don’t plan ahead, accessing the data you’ve left behind on your phone or synced with your Apple or Google account can prove difficult, or even nigh-impossible, for your loved ones.
Below are some tips for retrieving data from mobile devices and computers after their users have passed on. If you cannot retrieve the data on your own or with help from Apple or Google, though, the experts at Gillware Data Recovery and Gillware Digital Forensics can help. Our data recovery and forensic engineers have often assisted people in retrieving data from phones, computers, and other mobile devices belonging to deceased loved ones. In these situations, the data we recover often helps bring much-needed closure to the deceased person’s grieving family and friends.
Accessing a Deceased Loved One’s iPhone
Apple iPhones are, unfortunately, notoriously difficult to access in the event of their owners’ passing. Unlike many Android phone models, iPhones do not have (often unencrypted) microSD cards you can take out of the phone. All of the data resides within the encrypted flash memory chip built into the device. You can’t pick the lock or bust down the door, metaphorically speaking. Either you know the passcode that gives you access to the data on the phone, or you don’t. Your iPhone does not send your passcode directly to some giant password database at Apple HQ. Only the user—and anybody else they may have told—knows their own iPhone passcode.
Apple’s data protection policies, especially their encryption policies, are a harsh mistress. You cannot appeal to an iPhone’s reason or emotion, because it has none. Apple iPhones are designed to be virtually unhackable without taking the most extreme of measures. Each successive model is more unhackable than the last. That’s just the way these things are—and even appealing to Tim Cook can’t change that.
However, while Apple can’t help you access your loved one’s iPhone after they’ve passed on, their Apple ID, iTunes, and iCloud accounts present a much less insurmountable goal. These accounts often hold data that is synchronized between the owner’s iPhone, iPad, and other devices. Access to these accounts is often easier to gain than access to the iPhone itself.
To gain access to a deceased loved one’s Apple ID, iTunes, or iCloud account information, you can contact Apple Support. Apple Support will ask for identifying information, such as a death certificate of the user, and proof of relation. Apple Support does, of course, often err on the side of caution when it comes to releasing information on another user’s account.
Accessing a Deceased Loved One’s Android Mobile Phone
If your deceased loved one owned an Android mobile phone, your options are less limited. Depending on the model of phone and version of the Android operating system, you may have some luck using one of these methods to bypass the passcode or pattern lock.
Many Android mobile phones also store some of the user’s data on a small microSD card inside the phone. You can easily remove the microSD card, place it into an adapter, and plug it into a computer, even if you can’t access the phone it belonged to. Not all mobile phones come with a microSD card preinstalled, however. In addition, how much data the user had on the SD card depends on how the user had their phone set up.
Owners of Android phones often have their phones tied to a Google account. In these cases, some data on the phone, such as contacts or photos, may be synchronized with the user’s Google Drive. Like with Apple, you can contact Google to access your loved one’s account. In the interest of protecting user privacy, Google asks for plenty of identifying information about both you and your loved one before they decide whether to comply with your request.
Some of the information Google requires includes your name, mailing address, email address, the Google account username or Gmail address of your loved one, their death certificate, and an example of an email conversation between you and the deceased.
Requesting data from a loved one’s Google account is a two-part system. Google will review your request and may request a court order before moving onto the second step.
Accessing a Deceased Loved One’s Home Computer
Unlike with mobile phones, getting into your loved one’s computer to recover the files and documents they left behind proves much less of a challenge. Even if you don’t know the password to their user account, accessing the data on a computer is downright trivial. You can access their files from another account on the PC. Or, if you don’t have one, you can remove the hard drive from the PC and view the data on it on another computer using a hard disk drive enclosure or USB adapter cable. These methods all work, unless the data on the drive has been encrypted. When you encrypt data, it is impossible to make sense of it without the proper password to unlock the data (of course, if encryption were easy to circumvent, there wouldn’t be much point in having it).
This covers most of the data a deceased loved one will have lying on their physical devices once they pass on. But what about everything they’ve left behind on the Internet? What happens to it? Can you get to it?
What Happens to Your Social Media Accounts After Death?
The people using social media to stay abreast of current events, share things that are happening in their lives, and keep in touch with their families and friends number in the billions. Between Facebook, Twitter, Google+, Instagram, Pinterest, and various other platforms, people are accruing social media presences at an accelerating rate. When a user stops using an account, it just stays there. After all, your social media account won’t know when you’re dead. It can be unsettling, to say the least, to know that a family member or friend’s social media accounts are floating around through cyberspace as if nothing has changed.
All social media platforms highly value the privacy of their users, even their deceased users. As seen above with Google and Apple, the platforms holding onto your data, such as Facebook, Twitter, LinkedIn, etc., are reticent to release it to just anybody. (And in this case, family and friends count as “just anybody”.)
In general, social media platforms have no interest in providing other people with the proverbial keys to the kingdom, even after a user has passed on. However, social media platforms do have protocol in place regarding deceased users and what can be done to their accounts. Their protocol tends to be stringent, as many platforms, such as Facebook and Twitter, have fallen victim to celebrity death hoaxes in the past.
Some social media platforms have policies in place allowing people who were close to a deceased user to make limited decisions about what happens to their account after they have passed on. These include things like Facebook and Instagram’s memorial accounts. For the most part, though, social media platforms simply lock or deactivate the deceased user’s account.
Setting Up a Facebook Memorial Account
Facebook’s policy regarding deceased users allows for deceased users’ accounts to be transformed into “memorial accounts.” The deceased user is not treated as an “active” user and does not appear on potential friends lists for other users and other public spaces, although anything the user shared remains in place. Friends and family of the deceased user can post on the wall of the deceased and share memories of them.
Nobody can log into the deceased user’s account or alter any information on their account. However, if the user had defined a legacy contact prior to their passing, the legacy contact is allowed limited access to moderate the memorial account, and can request to download a copy of the account. However, they will not have access to the user’s private messages or be able to add or remove friends.
Only the user themselves can designate a legacy contact. In your Facebook account settings, you can choose a legacy contact, arrange to have your account memorialized after your death, or request to have your account deleted after you pass on.
A verified immediate family member on Facebook can request to have their departed loved one’s account memorialized or permanently deleted by contacting Facebook Support.
Instagram, which is owned by Facebook, has a similar policy, with memorial accounts of its own for deceased users. However, unlike Facebook, users cannot arrange to have their account memorialized before they pass on. Instead, a relative of the deceased user must contact Instagram and provide a copy of the user’s death certificate.
Deactivating a Deceased User’s Twitter Account
Unlike Facebook, Twitter has no options for “memorializing” deceased users’ accounts. But like Facebook, Twitter refuses to share login credentials for a deceased user’s account, so nobody can post on their behalf or read through their direct messages. Twitter will deactivate the account, which puts it in a queue for permanent deletion.
If you have login credentials to the deceased user’s account, you can simply deactivate their account just as easily as you would your own. If you do not know their credentials, though, you must go through Twitter Support. To request the deactivation of a deceased user’s account, you must fill out Twitter Support’s Privacy Form. To prevent abuse of this feature, Twitter requires you to provide information about yourself and the user. This includes a copy of their ID and your ID, and may include a Power of Attorney authorizing you to act on their behalf. If you meet these criteria, Twitter will honor your request to deactivate the deceased user’s account.
Removing LinkedIn Profiles for Deceased Users
Like any online account, nothing automatically happens to your LinkedIn account when you die. This can make it distressing for your loved ones, coworkers, or classmates if, after your death, LinkedIn serves up your profile to them in a “People You Might Want to Link To” email.
LinkedIn Help requires a friend or relative of the deceased to go through a rather involved process to close a LinkedIn profile for a deceased user. LinkedIn allows anybody to submit the form to remove the profile of a user who has passed on. However, since LinkedIn asks for you to state your relationship to the deceased, they will likely deny any request made by someone who is not close to the deceased.
Deactivating a Deceased Google User’s Account
You can request to have a deceased loved one’s Google account, including their Google+ page, Google Drive, Gmail inbox, and YouTube account, deleted by contacting Google Support. You will have to go through many of the same steps as you would when trying to access data stored on a loved one’s Google account as we discussed earlier. Google is more likely to honor a request to simply deactivate a deceased user’s account altogether than to release data from or provide access to the account. Understandably, deactivating a deceased user’s account is less of a breach of privacy than sharing their data.
Planning for the Future: Keeping Your Data Manageable and Accessible After Death
Losing a loved one is painful enough. We wish that dealing with the myriad things left behind in their absence were easier. Almost nobody likes thinking about mortality. Even fewer people relish the thought of dealing with everything their deceased loved one left behind.
Throw in our swiftly-accumulating social media accounts in the mix and things get uglier. Your grieving loved ones quickly become inundated with a flood of tiring and frustrating work as they find and deactivate the roughly half-dozen accounts the average person has today.
You can ensure that dealing with your digital affairs when you pass on doesn’t put your loved ones through unnecessary layers of bureaucracy by creating a digital estate plan.
Estate planning is an important part of making sure everything goes smoothly after you’ve shed your mortal coil. Estate planning includes writing up a Last Will and Testament, financial or health care Power of Attorney, and other documents. In the modern age, what to do with all your digital remains has to be taken into consideration as well.
A digital estate plan is, as its name suggests, a plan for your digital estate—the online data and digital documentation and belongings you’ve accumulated over the years. Your digital estate encompasses everything from digital financial records to your online accounts. Keeping your digital accounts accessible after death is part of having a good digital estate plan.
Creating a Digital Estate Plan
A digital estate plan will help your family deal with whatever you leave behind when you pass on. This includes accessing and appropriately managing your online accounts, determining whether any of your digital property has any financial value that needs to be reported, and distributing and transferring any digital assets. A digital estate plan can even keep you and your family safe from “ghosting”, or identity theft of deceased persons.
Planning your digital estate involves tallying up all of your digital records and online accounts. This includes all of your data storage hardware in addition to your online accounts. Once you’ve made a list of your digital assets, you decide what should be done with each, just as you would with your physical assets.
Some people recommend creating a separate “digital will” for your digital assets. In your will, you can appoint a digital executor. A digital executor will manage your digital estate, just like an executor manages your physical estate.
However, while Wisconsin has laws in place regarding “digital asset custodians”, not all states have legislation regarding digital estate planning. And as a result, your digital executor may not be legally recognized. Despite the legal limbo, though, appointing a digital executor can still make dealing with your estate much easier. A digital estate plan is still of great use, even if you cannot formalize it in a legally binding document.
Using Password Management Tools to Manage Your Digital Estate
We here at Gillware recommend that you store your passwords in a safe, secure place. Common choices are a locked file cabinet or a safe or safety deposit box. Only your trusted loved ones should be able to access it in the event of your death. The easiest and most convenient way to do this is with a password manager, such as KeePass.
With KeePass, you can store a digital record of all your online and device passwords in a database file. This includes anything from email, social media accounts, and streaming and data storage accounts to your smartphone’s passcode. With your password credentials in hand, your loved ones can easily deal with the digital cruft that built up over the course of your life.
Of course, this allows your loved ones to see all of the data on your accounts. You may want to exercise prudence in what login credentials you make available to your heirs.
There are many options for you to choose from to make your password database file accessible only to the right people. To make sure your loved ones can get to the file itself, leave the database on a flash drive or burn it to a CD. The next step is ensuring that only the right people have the master password to unlock the database.
Whatever you do, proactively planning your digital estate can make things much easier on your loved ones once you’ve moved on.
Keep in mind that we here at Gillware are data recovery and IT experts, not probate law experts. To plan your digital estate, discuss the matter with your estate lawyer, just as you would to plan your physical estate.
Virtual graveyards: Algorithms of death and the cost of immortality
For those who have lost their loved ones, social media platforms can allow for RIP memorials, and for recreating memorable visual and audio collections that keep those who have passed away alive in our imaginations.
In fact, digital immortality/virtual immortality that escapes the constraints of time and space is a hot commodity. From mobile apps that allow people to create digital avatars that can look and sound like your deceased best friend to those that allow you to relive shared memories through photographs, video clips and favourite tunes, your beloved remains present in your life. You can tell the digital avatar of your mother, who passed away before getting a chance to watch your children grow up, about the play your son is in or your daughter making the honour roll.
For the past six months, I have been examining the importance of virtual graveyards with a group of graduate students. We are looking at the significance of these virtual sites for marginalized identities in Canada. Virtual graveyards and cyber-memorial sites have become increasingly commonplace on the web.
This kind of technology can help people through the grieving process — and help with the healing after a great loss. Indeed, neuroscientists have argued in favour of such technologies, suggesting that social networking sites like Facebook can help with the grieving process.
Valuable national assets
Yes, these are graveyards in cyberspace and they function much like the cemeteries in real life, with one exception — you can go there at any time and from any place.
Thinking about Canada hundreds of years from now, what would such sites reveal about the everyday contributions of the country’s inhabitants? What stories of the nation could these sites tell us? As repositories that memorialize stories of common people leading common lives, virtual graveyards are potentially invaluable to historians and others seeking to understand the past.
What adds to their value is that they are accessible. For marginalized communities, printed obituaries may be inaccessible, structured as they are by criteria that demand remarkable personalities performing extraordinary feats or making singular contributions to the country; or, alternatively, notorious individuals whose deaths need to be publicized so as to appease our sense of a restored and balanced social order. Online memorials allow for a memorialization of the deceased in a public way, generating a sense of community.
A virtual community healing
These sites represent a shift in traditional rituals around death. Therapists are now recognizing that mourning does not end after one month or a year, but is rather ongoing, reflecting our continued attachment to friends and family after they have passed. Cyber-memorials and virtual graveyards assist with the healing process by providing space for ongoing grief.
In contrast to printed obituaries, which tend to be more descriptive rather than emotional, these virtual graveyards offer people a means to commemorate their loved ones in a less restricted way. We can write about our father’s unpublished poetry or our sister’s generosity — and more importantly, how much we love and miss them. We can celebrate their everyday lives and role in our communities.
Following the tradition of leaving tokens at a grave, these sites allow users to place virtual flowers or light candles for the deceased. One can upload pictures, video clips, songs, or a poem. By allowing mourners to interact with others who knew the deceased, or who are also grieving, these sites also provide the potential for building community support during the grieving process — providing some relief from the pain of loss.
The costs of virtual graveyards
But these sites come at a price. It may be the invasion of privacy in the vein of Facebook using personal photographs posted by users for its sponsored stories content. The emotional cost could also be the constant reminder of loss, or confronting visual memories that are assembled in such a way as to focus primarily on positive and loving memories instead of addressing the pain and suffering one experiences while grieving. Add to this, the issue of ephemerality: sites are notorious for their temporary nature, here today and gone tomorrow. Your memorial could vanish within minutes.
The economic costs are also factors to be considered. Most virtual graveyards charge at least $50 a year and sometimes more. There are few Canadian sites that offer such services for free, and if they do, they are often tied to other economic costs related to death rituals, such as funeral costs.
On the plus side, though, these sites are accessible to those who are literate in the ways of the Internet.
Should the sites survive, they’ll offer an archival treasure trove for those looking to see how ordinary people lived their lives and contributed to society. They could be a window into how marginalized groups lived, loved and struggled.
In that vein, virtual graveyards afford us an opportunity to reject a past based on erasure and ignorance. In Canada’s future, they could become invaluable national assets that should be supported, but only if they are freely available to their users and regulated in the best interests of all people.
Tweets from the afterlife
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Famous personalities and celebrities with millions of followers on social media platforms enjoy the stature comparable to high-value brands. Their Facebook posts, tweets and Instagram images not only have the potential to influence society but often become fodder for news, online discussions and even prime time debates. But have you paused to wonder what happens to their social media accounts in the event of their death? What becomes of the huge bank of online data that they leave behind? Do these digital assets naturally pass onto the next of kin, to the digital platform or to a third party that managed the said account/s in the first place?
While these are not new questions, the tussle over the social media accounts of former president late Dr APJ Abdul Kalam between his family and Kalam’s former aide who managed his social media affairs, has thrown the issue under the spotlight. Nearly two years after Kalam’s sudden demise, his family and Srijan Pal Singh find themselves on the opposing sides. It all started when Singh began handling Kalam’s Twitter and Facebook accounts after his death on July 27, 2015. When the family sought the account details, stating their rights over Kalam’s digital assets, Singh changed the username and the handle of his verified Twitter account from @apjabdulkalam to @KalamCentre. At the time of Kalam’s death, his verified Twitter account (@apjabdulkalam) had nearly 1.5 million followers and 886 tweets. When this was renamed to @KalamCentre, it stopped being a ‘verified’ handle. Singh did not hand over the details of this account to the family but the details of a new Twitter account that he’d created with the same handle, @apjabdulkalam, which had barely 50 followers. Incidentally, Kalam’s original Twitter account had 829 tweets (at the time of going to press), implying that some of Kalam’s tweets have been deleted since his death. Regarding Kalam’s Facebook page (Facebook.com/kalamcentre), Singh maintains that its username has always been Kalam Centre and that it doesn’t belong to the family.
“These are digital assets of a former President of India. He (Singh) is changing the legacy by changing the name and handle of his Twitter account,” says Kalam’s grandnephew APJMJ Sheik Dawood, insisting that the account details should be given to the family. “Everybody was following Kalam and not anything or anybody else. He shouldn’t have changed the name or handle.”
Singh contends that since he was the one who created and managed Kalam’s social media presence, he has sole rights over these assets. “Dr Kalam’s social media accounts were started to spread the message about his ideologies. I am here to continue his mission… whoever handles his accounts should be in sync with his ideologies,” says the 32-year-old. “I practically lived with him in the same house in the last few years of his life and was very close to him. I understood him.”
Trust in times of tweets
Ask if his actions tantamount to misleading Kalam’s followers and the public at large, Singh is dismissive. “On March 18, 2017, we informed our (Kalam Centre) users of the name change through a tweet, and so it is up to them to follow who they like. There are already plenty of fan pages and other accounts running in his name,” says Singh.
Even as he defends his position, the fact that he was using Kalam’s verified account for nearly 20 months after his demise can be seen as a breach of the right of reputation. “Posting or tweeting on behalf of a deceased person is breaching their right of reputation,” says Chinmayi Arun, executive director, Centre for Communication Governance (CCG) at National Law University, Delhi. Third party agents, according to Arun, should refrain from impersonating their principals in the same manner that secretaries and administrators refrain from impersonating their employers. “In case of an individual’s demise, the agents are expected to handover everything to the heirs and this should also apply to digital accounts,” she says.
On its part, Twitter India refused to comment when contacted and pointed this reporter to the site’s support page on deceased or incapacitated users. The micro-blogging site makes it clear on its website that it does not provide account access to anyone regardless of their relationship with the deceased person, and added that “this policy is about deactivating accounts, not transferring ownership of accounts”.
Emails to Facebook India’s corporate communication head remained unanswered. The social networking site states on its pages that it neither approves the inheritance of a user’s account nor permits using an account following a user’s demise. Instagram lists a similar policy and states that an account can be memoralised or removed after the user’s demise.
Black, white & grey
While social networking sites’ policies clearly mention that an individual user account should be operated by the person him/herself, it is common knowledge that celebrities often outsource the management of their social media accounts to digital and social media agencies or to a select team under their direct watch. They too tread nebulous waters. Digital marketing agency, EveryMedia Technologies, which manages celebrity accounts, states that although there is no clause regarding the protocol to be followed in the case of a client’s death, they would do as per the social platform’s guidelines after due consent from the family. “Our contracts do not have a clause that states the way forward in case of demise of the account holder and we hope such a day doesn’t come,” says Gautam B Thakker, CEO, EveryMedia Technologies. “In the event of such an unfortunate incident, the standard operating procedure would be to convert the account into a legacy account and memorialise it for fans and well-wishers or to deactivate and close it — whatever the social platforms’ and the client’s family permits.”
Daksh Juneja says of Avignyata Inc specifies that the work is based on strict contracts, which never mention the course of action to be taken in case of the personality’s death. “There is no contractual obligation towards the IPR rights for a celebratory client on both sides but it’s important to share the access of the social media pages with the person’s manager or a family member,” says Juneja, the chief operating officer of the Mumbai-based digital agency, which handles social media accounts of Bollywood celebrities and sportsmen.
Supreme Court advocate and an expert in cyber law, Pavan Duggal, points out that the terms and conditions of social networking sites aren’t clear. “Deactivating accounts can amount to loss of data, which can be used for reference and research. I think more clarity is required,” says Duggal. “When a person has an account, only he/she should access it. However, if a person has an agent, then (in the case of death), the principle of agent applies.”
Given the reluctance of social media platforms to engage and the lack of clarity as highlighted in the case of Kalam’s accounts points to several questions — from handing over the digital accounts, intellectual property rights, right to reputation as well as unambiguous policies by service providers. Taking about Kalam’s accounts, Duggal feels his family is the rightful legal heir to his digital assets. “The family should approach the court and file a case against Singh under the Information Technology Act and under IPC section 408 — criminal breach of trust,” he says. “They can also reach out to service providers, and if they don’t co-operate, they too can be sued under the IT Act.”
Duggal strongly believes that “if a person has died without specifying, then his/her digital presence or accounts being a digital property, should be treated as movable assets and should pass on to the legal heir or representatives of the deceased person rather than to an NGO”.
According to Sunil Abraham, executive director at Centre for Internet and Society, Twitter India should help settle the Kalam case using its existing policy. “And if there is no space for a legacy contact, they might consider resetting the password so that nobody has access to it and then they can memorialise the account,” says Abraham. “Social media accounts are increasingly being enumerated under digital assets in wills. Once the asset has been transferred to the heir, the heir can choose to transfer the account to another person or organisation for their services in maintaining the account. While this is not explicitly provided for in the law, there is no prohibition either.”
WHEN THEY DIED…
Among the eminent personalities whose social media accounts continue to be operational after their demise are anti-apartheid leader and former president of South Africa Nelson Mandela, pop star Michael Jackson and boxing legend Muhammad Ali.
While Mandela’s account has been turned into a foundation, Ali’s account states that it pays tribute to the boxing legend. Jackson’s account mentions nothing about the fact that he died in 2009. Their Twitter and Facebook pages witness a tweet or a post every few days. Both Jackson and Ali also have verified accounts on Instagram; their photos are posted every now and then.
Among the celebrities whose accounts have been left inactive are Bollywood actress Jiah Khan, television actress Pratyusha Banerjee and British singer-songwriter George Michael. While Khan’s last tweet (on May 23, 2013) was an apology message for staying away from the social networking site, Michael had shared his song Heartbreak a day before Valentine’s Day on February 12, 2016. Banerjee had tweeted ‘#prayforparis #prayfortheworld’ on November 15, 2015, showing her support against the terrorist attack in Paris on November 13, 2015. This was her last tweet before she was found hanging in her apartment in Mumbai on April 1, 2016.