With nearly a billion users, it is unsurprising that roughly 60,000 Facebook users die each month (the cause of death is (usually) unconnected!). Facebook recently introduced the right to appoint a ‘legacy contact’ - a trusted individual with the right to control aspects of your account after your death. This can be done through the security page on Facebook, or by naming the individual in your will.
The legacy contact’s access to your account is somewhat limited, but it does serve as a reminder of the growing digital footprint left behind after death and indeed, of the increasing amount of data we own. For example, emails, photographs and word documents, commonly stored online, often have financial as well as sentimental value. The issue is more salient with respect to a photographer’s Flickr account, a journalist’s blog or a celebrity’s Twitter profile (which may have high commercial value). Whilst creating and sharing digital content is easier than ever, approved access to it after death is far from certain.
Email services such as Gmail and Windows Live Mail, permit access to executors in much the same way that banks or registrars do with cash or shares. Of course, by law, these assets devolve under the deceased’s Will, and ownership (including associated intellectual property rights) should pass to the deceased’s executors who hold it on behalf of beneficiaries. However, some service providers such as Yahoo and Twitter do not permit access by third parties under any circumstances and effectively terminate the user agreement on death. In 2004, Yahoo infamously resisted the release of Marine, Justin Ellworth’s emails and photographs to his family and attempted to compel surrender to them of all related proprietary rights. Despite eventually being forced to release the data, Yahoo’s terms and conditions remain unchanged. Thus whilst the law appears to acknowledge the privileged status of a deceased’s next of kin or personal representatives (as with any other type of asset) it seems that large companies are less inclined to do so due to their own security concerns.
The issue may boil down to who owns this data. For example, there are legal problems in bequeathing one’s iTunes library to a beneficiary. Apple’s lengthy terms and conditions confer a license to each song you buy, rather than outright ownership. The purchase of a CD does not confer ownership of the music on the disc but the buyer is free to lend, sell or give away the CD to a third party. Thus leaving a CD collection to a beneficiary does not present any legal issues. Doing the same with an iTunes account on the other hand, is not possible as the law stands (although you could just give someone else your login details).
Developments in American law are highly relevant, given the dominance of American companies in the email, blogging and cloud storage sectors. The Fiduciary Access to Digital Assets Act would modernise the law by allowing access to digital assets in the same way as tangible assets; however, the vast majority of States are yet to adopt this law into their own legislation. Exactly how the law will interact with the small print we overlook when we sign up for online services remains to be seen, but it does highlight the inconvenience, stress and cost that could be avoided with clear succession planning.
Facebook may be ahead of the curve in putting this issue in the hands of its users, which points toward the fact that only we as individuals can truly ensure that our online data is protected and accessible to others after we die. In practice, this could mean taking simple steps such as maintaining lists of online accounts together with details of to whom you wish to leave them. In reality, however, entrusting login details to a friend and making specific provision in your will are the only ways plan ahead with any certainty.
For further information contact hbutler@woodfines.co.uk
___________________________________________