Digital Death

Date Added 01.02.17

Have you considered what will happen to your online assets or accounts after your death? Not many people do which is why many personal representatives and companies holding the data face difficulties in dealing with a deceased person’s digital estate.

Common types of ‘digital assets’ include:

  • Social media accounts, e.g. Facebook, Twitter, Instagram etc.
  • Photographs and videos stored online, e.g. Dropbox or on social media accounts
  • Online gaming avatars
  • Emails
  • Blogs

What proprietary rights do you have over your digital assets?

It is not entirely clear what rights account holders have over digital content they create and hold online. When you create an account for an online service, you are normally required to agree to the internet service provider’s (“ISP”) terms and conditions which typically state that the account/software itself belongs to the ISP but it is not clear who owns the content created within it. However with Kindle and I-Tunes, the ISP actually grants the user a licence to use the download during their lifetime – the individual user does not actually own the material and so it does not form part of the estate.

It is not yet clear whether such content is considered property and is capable of being transmitted on death in accordance with the deceased’s will or the intestacy rules. For example, in Fairstar Heavy Transport NV v Adkins [2012] EWHC 2952, the judge concluded that an attempt to establish what proprietary rights might exist over email would create practical difficulties and instead the creator of the content should seek protection based on copyright or confidentiality laws.

Copyright and confidentiality laws

The Copyright, Designs and Patents Act 1988 sets out the copyright laws in the UK. Copyright protection generally lasts for the life of the creator plus 70 years from the end of the calendar year in which he died. Copyright laws protect the creator’s form of expression of ideas such as original literary, musical and artistic work, including illustration and photography, software, film and television recordings etc. This means that any content created in an online account may be protected by copyright laws and any copyright held in digital assets would pass to the deceased’s personal representatives for its beneficiaries.

Alongside this issue is the reluctance of ISPs to transfer or allow access to the deceased’s account due to their duty to protect the privacy of the deceased and the content contained in the deceased’s account pursuant to confidentiality and privacy laws. The duty of confidence applies to information that is confidential in nature or where its context reasonably expects one to keep it confidential, for example personal information that an individual creates or stores online. This can often cause distress to family and friends who may, for example, want access to photos, videos or emails contained in the account which the ISP may not provide access to.

Following death, the content of a digital account remains protected by passwords and login credentials which, by virtue of the ISP’s terms and conditions, should not be shared with any third party. From the ISP’s perspective their terms and conditions are designed to protect users from misuse of their accounts and information. In this context the ISP seeks to prevent, for example, new emails being sent in the name of the deceased from the deceased’s email account or new social media posts which, however well intentioned, would amount to impersonation of the deceased.

What can you do to transfer your digital assets to your loved ones?

To add to the uncertainty, most terms and conditions of ISP’s do not adequately provide for what will happen to the digital assets stored on an account after the death of the account user. Twitter, for example, refuses access to the account to anyone but will work with a person authorised to act on behalf of the estate (e.g. a personal representative) or with a verified immediate family member of the deceased to have the deceased’s Twitter account deactivated once they receive certain information such as ID, death certificate etc. Yahoo accounts are non-transferable and all rights to the account terminate on death. ISPs such as Facebook and Google Account provide an in-service option which allows the user to select settings to determine how their account may be dealt with in the event of their death. However, many users are unaware of these functions.

Individuals should consider making provision specifically for digital assets in their will. It is arguable that by providing access to their accounts, by passing on details of those accounts and the login details, the individual is giving authority to their personal representatives to access the information in breach of the ISP’s terms and condition however it is unlikely that an ISP would take action for breach of its terms and conditions in this context.

For digital assets with significant monetary value (for example blogs or videos linked to advertising on online gaming accounts) consider dealing with these specifically in your will.

It goes without saying that if you do record your account access details for use by your personal representatives then this information is only useful if it is up to date. You should therefore review the record regularly and keep it updated.

If you would like more information about the issues above, talk to Tollers on 01908 396 230 and ask for Liz Appleyard in our Commercial Team who can advise on intellectual property and confidentiality issues or to any member of our Trusts and Estates team about your will.

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