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Jalil Asif QC explains how to manage your digital estate after death.

Death and taxes have been said to be the constants in life. Barristers are always receiving offers of free tax advice so, for a change, this article is about death and its consequences.


Death comes to us all and, for as long as the human race has existed, people have been interested in what happens to them after they die. Less philosophically and more practically they, and more often their families, have been interested in what happens to their property after they die. Over many years, the law has therefore built up a complex regime relating to the transmission of real and personal property following death, involving trust law, wills and estates and the law of intestacy.

As a result, the law has developed to give great flexibility and control over the transmission of property and succession planning more generally.

But modern humans have a problem that didn’t need to be considered even 10 years ago, and which, even now, only a small fraction of people have thought about: what happens to our digital presence and property when we die?

All of us nowadays leave a digital footprint behind us. Increasingly, this is becoming bigger than our physical one.

People have been storing personal documents electronically for many years – for example: correspondence, diaries, notes, family histories etc. Often this replaces storage of physical objects – for example photo albums, books or LP/CD collections. But such storage tended to be on local hard discs or USB drives, rather than online. That made it relatively straightforward for relatives to access the documents, photos, music and other data after death (provided they knew any necessary passwords).

Increasingly in recent years there has been a move to store data of all kinds, including sentimentally or financially valuable data, in some form of remote storage – i.e. “in the cloud”. In addition, the types of accounts and data we have, and leave behind us, are rapidly multiplying in nature as more and more online services are developed.

For example, most of us now will have many (or all) of the following:

  • Personal email accounts (sometimes very personal ones)
  • Twitter accounts
  • Social networking accounts
  • Photo and video sharing accounts/storage
  • Music libraries
  • eBooks
  • Online blogs
  • Online gaming accounts
  • Subscriptions to online services
  • Trading accounts and online shops

 

It only takes a moment to think of a multitude of common online service providers, whose services you may already use or whose names you recognise: Hotmail, Yahoo! Mail, Gmail, iCloud, Skydrive, Dropbox, Twitter, Facebook, LinkedIn, Google+, Kindle, Pinterest, Reddit, Tumblr, Flickr, Instagram, MySpace, Bebo, Buzznet, Foursquare, Spotify, Netflix, Last.fm, Plaxo, Wattpad, YouTube, ebay, Paypal, etsy, Steam.

The question of what happens to the mass of data we leave behind after we die is a crucial one, and is inextricably linked to the question of how the law is applied to and adapts to the problems thrown up by the complex web of rights and interests in that data and the associated ethical issues. What’s more, it’s a question that is growing more and more pressing with every passing year. For example, more than 30 million accounts on Facebook now belong to dead people, and that number continues to grow as an average of three Facebookers die every minute.

Facebook now allows next of kin the ability to close or delete accounts of those who have died, but even so, there is a risk that Facebook will have more dead users than live ones by the middle of the 21st century. Additionally, the problem is a current one, rather than one that we can sit back and wait to hit us: the Office for National Statistics estimates that 70% of 65-74 year-olds in the UK are active online – and those internet users are not getting any younger.

Is it “property” and who owns it?

One of the most fundamental questions, particularly in light of the move towards online and cloud storage, is whether the material we’re talking about actually counts as “property” at all, since the basic nature of stored digital data is a series of electrical pulses or changes in the magnetic polarisation of metal on a hard disc, usually somewhere very remote from the user. It’s very doubtful that this is sufficient to be “property”, and even if it is, in what sense is it “owned” by the remote user rather than the corporation operating the server farm? The more fruitful argument is likely to be that it is the combined bundle of contractual and intellectual property rights over the data that constitutes valuable property.

For that reason, it’s necessary to consider precisely what rights over the data did the deceased have – for example the agreement with many eBook, music, video and online gaming sites only grants a personal licence to use the digital data, and not a transferable property right. Whilst you might have been able to bequeath your physical collection of CDs and antique Led Zeppelin albums to your children, you may find that your iTunes library does not actually belong to you at all. All you have is a personal right to listen to the tracks, governed by the software agreement and terminating on your death, so that you may not actually have anything to be left for your descendants. Similarly, the online character whose skills and attributes were built up over years in Call of Duty or  Skyrim may all be wasted time and money if you don’t have both the right to pass ownership on and also the  arrangements in place to do it.

The most important starting point is the agreement with the service provider in question. This will contain detailed contractual provisions to which the user will have agreed when they first signed up to the service, and which are likely to override the general law regarding property rights and copyright in the data in question. The agreement usually includes detailed terms dealing with who can have access to the account and how, and also precisely what rights over the data the successors of the original user will have. Currently, there are few cases which have been fully fought out in court.

However, by way of example, in 2005 the family of an American GI who had been killed in Iraq wanted access to his emails in order to create a memorial to him. Yahoo eventually agreed to provide access, but only after the local probate court had made an order to that e¬ffect. Yahoo’s position was that without such an order, disclosure would contravene its privacy policy – the Yahoo terms expressly provided that there was no right of survivorship or transferability in relation to email accounts following death of the subscriber, and went on to provide that Yahoo would be entitled to delete all content.

A small number of lawyers and legal commentators have been exploring the issues thrown up by questions such as these over the last few years. However, there remains a lot of uncertainty and little to no judicial guidance about how the law can adapt to deal with these changes in the way in which we live our lives in the 21st century. It remains very unclear how our existing legal concepts and structures – for example, property law, contract law, copyright law and the law of succession – will adapt to handle these different circumstances, which therefore makes this a thought provoking area of law today.

I don’t pretend to have the answers to the questions outlined above, but here are some practical thoughts on what you might do whilst they are being worked out:

Keep a list of all your accounts, usernames and passwords, and keep it up to date (physically or online).

Have someone, whom you trust, who knows where to find that list and how to access it.

Have clear ideas of what you want to happen with your data, and pass on those instructions, for example in a letter of wishes left with your will – in particular:

  • you may want to preserve your photos, videos and blogs for future generations;
  • you may want to pass on access to your music library;
  • you may want to archive or delete your social networking accounts;
  • you may want to archive or alternatively delete your emails; and
  • you may even have a “secret” email account that you want brushed under the carpet and lost.

 

Think carefully about whether any of your digital assets have value in the real world which your executors may need to report and submit to probate.

And, as you might expect, there are already individuals who are creating software focused on what happens to your digital assets after you die. For example, there is software that will store key files, passwords and instructions for your loved ones and only pass them on when you die, and software that will send out pre-prepared messages on your behalf at specified times or dates after you die.

As with many things in life, the most important motto is to be prepared, but in this case it’s a question of being prepared by thinking about what you want to happen to all of that intangible data that you have left floating around the digital world, and making sure that you put in place the mechanisms to make the consequences for those left behind as easy as possible.

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Jalil Asif QC

Jalil is a partner with the global litigation firm, Kobre & Kim. He focuses on advising and litigating complex commercial and insolvency disputes, often involving technological, digital, financial, and scientific issues.