Test Case for Facebook and Digital Legacies

29 June, 2012
by: Cripps Pemberton Greenish

Parents of Benjamin Stassen, Jay and Helen Stassen of Wisconsin US, have obtained a court order forcing Facebook to allow them access to the accounts and online assets of their late son. So far Facebook has refused to comply, although Google is now cooperating.

Benjamin Stassen committed suicide in late 2010 without leaving a note. Just like most youngsters, much of his personal information and data was held online. His parents wanted to look through his accounts to try and find some explanation for his suicide. However, Facebook and Google refused to assist, citing client confidentiality.

As heirs to their son’s estate the Stassen’s resorted to legal action. They obtained a court order ordering Google to hand over all of Benjamin’s email records and Google have now complied with the order. The parents have also obtained an order seeking access to their son’s Facebook account. The court order releases the company from its client confidentiality obligations. However, at this stage Facebook is still considering its response and may appeal to a higher court.

Prior to this case the most widely publicised case to date involved Yahoo!. When Lance Cpl Justin Ellsworth was killed in Fallujah, Iraq in November 2004, his father wanted to create a memorial to his son using the emails he had written and received whilst in the Middle East. Yahoo!, adhering to their terms of service, refused to allow access on the basis of privacy. However, the family obtained a court order forcing Yahoo! to release correspondence to the family. Nevertheless, despite the Court’s decision Yahoo! has yet to amend its standard terms.

Although both these cases concern US law, there can be doubt that UK Courts would have regard to them as setting a strong precedent for cases that may emerge here. Internet Service Providers must either start requiring users to specify what should happen to their accounts on death, as part of the set up procedures, or respect the existing probate and succession laws of each jurisdiction. Internet users, young and old, should think about making formal arrangements in respect of their digital estates. Preserving and transferring the value of virtual goods and profiles is a three stage process as follows:-

1. Digital Inventory – individuals should start by completing a spreadsheet, listing all their digital assets, profiles, email addresses, devices, and gaming accounts. If no one knows about them then they can’t be preserved. In each case they should list user names, type of digital media and most importantly state what their wishes are in relation to it.

2. Digital Will – once you know what you have you need to appoint executors to deal with your digital estate. The executors will be responsible for gaining access and, where relevant, shutting down or passing over each account to the relevant heirs.

3. Password Storage – strictly speaking, if steps 1 and 2 are completed then the ISP ought to provide your digital executors with access information. You could avoid any delay or uncertainty by storing all your passwords and other access information on a site such as Legacy Locker and Deathswitch. Such websites allow users (for a fee) to upload their personal login details and passwords, which are then released to your executors after your death. Concerns have been raised about the long-term security of such sites. A cheaper alternative would be to store the information on a separate document in your computer. You then only have to make your computer password available your digital executors on your death.