Walking in your digital footsteps

  • Posted

In a world increasingly connected through social media, we are all aware of leaving a ‘digital footprint’. We make the decisions on what information we share via these channels and who can access them. But who takes on this responsibility when we die and what access rights, if any, will our friends and relatives obtain?

In the case of Facebook, the right to appoint a ‘legacy contact’ was introduced in 2015, allowing a trustee to administer aspects of a person’s account after their death. This can be done via the Facebook security page or by designating the role in the terms of a Will.

Whilst the access to an account that the role permits is restricted, the ability to choose someone to manage aspects of our online data is an important development. This is partly because the emails, photographs and word documents stored digitally frequently have financial as well as sentimental value. This is especially so as regards the intellectual property of creative professionals, whose work will often be commercially valuable.

For the same reason, limiting the access of a legacy contact is necessary.

The access permitted to executors in terms of dealing with finances and investments is matched by many email services to the account of a deceased person. However, some service providers, such as Yahoo and Twitter, completely prohibit third party access under and effectively terminate the user agreement on death.

In one case, this approach resulted in a family being forced to hand over the proprietary rights to emails and photographs of a deceased relative to Yahoo. Despite eventually having to relinquish the data, Yahoo have stuck to their terms and conditions. It appears that, for large companies, their security concerns outweigh the privileged status of executors.

The crux of the issue is data ownership. For example, passing on your iTunes library to a beneficiary is fraught with legal problems. Each song purchased has its own license, under Apple’s terms and conditions, rather than conferring outright ownership. The purchase of a CD does not confer ownership of the music on the disc but, instead, the buyer is free to lend, sell or give away the CD to a third party. Therefore, whilst a CD collection can be bequeathed without encountering any legal issues, the same cannot be said for an iTunes account.

It is useful to look to the United States for indications of where the law regarding digital assets is heading. The Fiduciary Access to Digital Assets Act allows access to digital assets in the same way as tangible assets, although the majority of States have not adopted the law to date. Exactly how the law interacts with frequently ignored terms and conditions of online services is yet unclear. What is apparent is that many potential legal dilemmas and subsequent angst could be avoided by making clear plans for inheritance.

Through its ‘legacy contact’ initiative, Facebook has possibly shown the way in empowering its users. Their action emphasises the point that, ultimately, we are individually responsible for ensuring that our online data is protected and accessible to others after we die. Practical steps, such as keeping lists of online accounts and succession plans can assist in achieving this goal. However, the best options to guarantee your digital assets are in safe hands would be to provide login details to a trusted person and make specific provision in your Will.