As the pace of technological change increases new laws struggle to catch up. One point at which this is very obvious is death, or more specifically, what happens to your digital life when your real life comes to an end. (Digital Trend article refers)
Unlike physical media such as CDs and DVDs our digital possessions don’t actually belong to us, we just “rent” them or we rent the service which allows us to store them online ‘in the cloud’. This was a shock to Bruce Willis who, when he came to make his own will, found out he didn’t own his massive iTunes library and so couldn’t leave his collection to his children after his death. (Guardian article refers)
The current policy for social media services such as Facebook and Twitter is that they refuse to send the login information for an account of a deceased person to the surviving heirs or the executors. Instead, Twitter will deactivate the page upon request from the surviving family and Facebook allows family members to make a memorial request to archive the account.
All this may be about to (slowly) change if the example set by the small American state of Delaware is followed worldwide. They have become the first American state to pass broad legislation related to the ownership of digital accounts. A new law will allow residents of that state to pass digital assets to heirs, just like physical and financial assets. This means Delaware residents can gift access to email accounts like Gmail, social media accounts like Facebook or Twitter, documents stored on services like Dropbox and pretty much any type of photos, music or video that’s stored within the cloud.
According to Ars Technica, the rights afforded to the account holder under “any end user license agreement” will be transferred to the heir or heirs. (Ars technica refers)
Excited that the law has taken effect in Delaware, the non-profit Uniform Law Commission released a statement reported by ABC News which read “In the modern world, digital assets have largely replaced tangible ones. Documents are stored in electronic files rather than in file cabinets. Photographs are uploaded to websites rather than printed on paper. However, the laws governing fiduciary access to these digital assets are in need of an update.” (ABC news refers)
Alternatively, a representative of a security organization that represents companies like Google and Facebook released an opposing statement reported by the website Ars Techica which read “This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased. This would include highly confidential communications to decedents from third parties who are still alive—patients of deceased doctors, psychiatrists, and clergy, for example—who would be very surprised that an executor is reviewing the communications.” (ARS Technica link)
If you have any legal enquiries regarding your electronic legacy, please speak to our Wills, Trusts and Probate team on the above number or fill in our online enquiry form.
Source References and links:
Digital Trends, “Want to pass your Facebook account to a heir? Move to Delaware”
The Guardian Bruce Willis to fight Apple over right to leave iTunes library in will
Ars Technica, Delaware becomes first state to give executors broad digital assets access
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