Death in the Digital World

How much of your life is contained within the digital world?

It’s a difficult question to answer – but the chances are, the more you think about it, the more you realise how many of the things you value exist in an entirely digital form, maybe even with no physical evidence of their existence. Things like:

• Social media profiles.
• Pictures and videos stored in the cloud or on our phones and computers.
• Music and game libraries purchased entirely through digital means.

Many of us like to feel in complete ownership of our digital assets, but unfortunately the true position is often much less clear. And they are often forgotten about when it comes to making inheritance plans and passing your assets on to loved ones.

Traditionally, the focus has always been on tangible items, such as money, property, possessions, but – in the same way as intellectual property or even loyalty col__card and reward points – digital assets could represent considerable value. And when you think about it, would you not want a friend or family member to benefit from your collections, when you pass away?

What happens to digital assets on death?

This is a huge and wide-ranging question and, unfortunately, it is one to which the law has no clear answer. In general, the individual contracts, licence agreements, terms and conditions, and usage policies of the service at hand will decide what happens to someone’s digital assets when they die.

Often, difficulty can arise from the fact that many online services involving licensing content rather than owning it outright. For example, the terms and conditions for Apple ID accounts state:

 “No Right of Survivorship

Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted […]”

By contrast, Facebook allows for more involved post-death account management to take place:

 “You may designate a person (called a legacy contact) to manage your account if it is memorialised. Only your legacy contact or a person who you have identified in a valid will or similar document expressing clear consent to disclose your content upon death or incapacity will be able to seek disclosure from your account after it is memorialised.”

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What could your digital assets mean for your loved ones?

Someone’s digital assets, of all kinds, can have huge emotional value for bereaved friends and family. Photos and videos can represent priceless memories, and a way of keeping a stronger connection to those who have gone.

According to Facebook, the memorialised account pages mentioned above receive more than 30 million views per month, and this indicates some of the emotional significance which digital assets can have.

Facebook also demonstrated this in a much less favourable way when many users reported instances of the system nudging them to contact friends and family members who had died. In April 2019, Facebook announced that it would be using artificial intelligence to try to stop this from happening.

Recently, a woman’s legal fight to access her deceased husband’s Apple account made headlines. In May 2019, Rachel Thompson won her three-year battle to obtain her late husband’s photos and videos from his iPhone, so that she could help their daughter to remember him.

Last year, a legal case resulted in Facebook being ordered by a court to reveal who had authorised the deletion of a profile of a man who had died. Ms Azra Sabados had been in a long-distance relationship with Mr Mirza Krupalija for several years, when he died from a heart attack. They had often communicated through Facebook messenger, and when his profile was removed six months after his death, with all his pictures and messages, Ms Sabados said it felt like losing him for “a second time”. She had begun the legal action because she did not believe whoever requested the deletion had the authority to do so. 

Inheritance law falling behind on digital assets

These cases are symptoms of an area of law which is being outpaced by technological development and the rapid growth of online culture. It is telling that the principal legislation on Wills in force today is the Wills Act, passed in 1837. Whilst it would be very wrong to say the law around inheritance has not moved on from that time, it shows how long ago its foundations were laid – in a time when the internet was beyond imagination and mention of a ‘digital asset’ would probably have been taken to mean someone’s finger!

But there are signs that Wills are being dragged into the digital age; Wills can now be made through online services, for example. However, the lack of a clear position on how digital assets are managed and passed on after death is set to become an increasingly common issue. More and more aspects of life are being moved online. Generations who have grown up surrounded by digital services are growing older and beginning to plan for their families’ futures.

How can I prepare to pass on my digital legacy?

The first step is to consider the digital assets you have and those which you would like to pass on. Information is key part of this, in two different ways:

1. In identifying the rights you have over particular digital assets, e.g. through the terms and conditions which may apply to them.
2. The account information which allows you access to those assets.

Your account information and passwords represent the clearest way in which loved ones can continue to use or retrieve the digital assets you have – as long as the terms and conditions relating to the assets allow them to do so, of course.

For example, in Mrs Thompson’s case mentioned above, if her late husband had passed on his account information to her in a secure and accessible way, it is very likely she would have been able to show their daughter his photos and videos without resort to a three-year legal battle. This is all very easy to say with hindsight, but planning for the future often involves learning from past events.

Naturally, passing on a large amount of your most sensitive account information and passwords has to be handled carefully. Pen and paper methods have the advantage of being secure against hackers, although they still have to be protected from other risks. In addition, the information has to be accessible by your loved ones after you are gone.

These are significant challenges and, at Roche Legal, we are available to advise you on how you can make the necessary arrangements. We have also prepared a Digital Assets Log, which you can print out and use to record and maintain your information.

Finally, you should also encourage your loved ones to think about their digital assets. If they have assets which you feel they should be protecting or preserving after they are gone, then beginning preparations now could make all the difference. 

Advice from Roche Legal

At Roche Legal, we are reassuring experts, who specialise in:

• Wills
• Probate and Estate Administration
• Trusts and Estate Planning
• Contested Probate and Will Disputes
• Presumption of Death Applications
• Powers of Attorney
• Court of Protection