Your digital after life in their hands

17 December, 2011
by: Cripps Pemberton Greenish

The prevalence of social networking sites such as Facebook and Twitter has given rise to a new legal conundrum; what happens to our personal information stored on such sites when we die?

It’s hard to believe that until 10 years ago most social networking, email service providers, blogs and on-line gaming sites did not exist. Yet now so many of us, in one form or another, have incorporated these into our daily lives as means of communication and personal organisation. Increasingly, we use these services, via internet service providers (ISPs) such as Yahoo, Google, Facebook or Twitter, as online diaries; uploading and storing on their servers a wealth of both personal and professional information. Yet how few of us actually stop to consider what will happen to that personal information after our deaths and, if we do, does the law provide us with the necessary solutions?

At present no recognised standard exists for dealing with user’s digital deaths. What happens to the personal data you store online will often depend upon the terms and conditions of the ISP in question. The way in which each ISP will treat personal data after the death of the user will vary. For example, many ISPs ask users to give up control of copyright in return for allowing the ISP to share uploaded content. However, once these rights over personal data are shared or given away, it can prove virtually impossible to control how that information might be used or distorted in future, or indeed who might be given access to it in the longer term.

Ordinarily, on death, an individual’s executors or personal representatives have the legal authority to decide what happens to physical documents, assets and other personal information. However, rightly or wrongly, it is currently the case that many ISPs do not recognise the rights of your appointed legal representatives to access or control profiles, photographs, videos and other information contained in such accounts. This means that valuable information, history and family records (albeit often only in a sentimental context) are lost. Conversely, in some cases where access is provided, confidential and personally sensitive matters are unintentionally shared in a way that was never envisaged by deceased.

We are only just beginning to discover the potential worth that exists in digital assets such as on-line blogs, websites and gaming profiles. An on-line market place, with an estimated world-wide value of $6 billion, already exists solely for the purposes of allowing users to trade gaming profiles and other virtual goods.  Increasingly, and particularly for younger users, the value of our digital legacy may be less about sentimentality and far more about real financial worth. Put into this context individuals might think more carefully about who inherits their digital estate and what steps they ought to take to protect the value of it for the next generation.

Since there is currently no standard way of ensuring what will happen to one’s digital legacy, various options have emerged as a means of getting around the question of access and control.  For example, an individual could simply keep a list of their online accounts and passwords in a safe place for personal representatives to discover. Alternatively, for a fee, one can use the services of specific third party providers who promise to store passwords and other access information, releasing it only on death to certain nominated individuals.

A more traditional approach would be to appoint digital executors in your Will; they are empowered to act on your behalf and liaise with the relevant ISPs in order to access information and deal with it in accordance with any wishes made known to them. Each of these options comes with its own risks, limitations and uncertainty and effectiveness ultimately will depend upon the cooperation of the relevant ISP at that time. Nevertheless, what is certain is that doing nothing is not the solution. Individuals should, at the very least, consider what impact their death might have on the digital world and, where necessary and within the confines of the current system, take action to protect or control this information and the value (real or otherwise) that it may have.

We are currently undertaking research into this developing area of law and, therefore, hope to have influence over the solutions that emerge.  In the meantime, we are on hand to advise clients on the arrangements that can be made to safeguard value and protect personal wishes in relation to their digital estates.