In recent decades, private client Solicitors have observed an increasing requirement to assist Will clients with their digital assets. And this trend will only continue with each passing year as we each establish a larger online presence.
According to research by the Oxford Internet Institute, by 2100, there will be nearly 5 billion people deceased Facebook members. Facebook, however, is one of potentially hundreds of platforms or systems on which clients may be, or have been, active. Add to this the many repositories of digital data, information, files, money, code, or any other electronic footprint which may require action of some sort on our death, it is easy to see how the challenge can spiral if not managed carefully and efficiently.
In this article, we will focus on some of the legal practicalities, faced by legal practitioners, when transferring digital assets following death, including in the specific areas of copyright, confidentiality, and ISP terms and conditions.
Copyright law in relation to digital assets
As set out in the Copyright, Designs and Patents Act 1988 (CDPA 1988), copyright law exists to provide automatic protection for the creators of original work for a set duration (70 years after death from the creation of the work). This law applies whether the work created is in digital or in physical form, as long as independent effort was expended by the individual to create it. When it comes to digital assets created on online accounts, the law can be somewhat less helpful. If the asset is clearly work by an individual, such as a blog or image, then it may be reasoned that copyright law should also apply. The individual terms and conditions of each online service provider must also be considered; each of which will have its own user IP clauses. Platforms such as Instagram and Facebook state that the account holder owns the copyright to their content, but the providers also have the right to use IP content posted on their service in a manner which is worldwide, royalty-free, non-exclusive, and transferable. On death, however, the online copyrights can be distributed as part of the wider estate to the beneficiaries of the deceased.
Confidentiality in relation to online information after death
Another area of common confusion arises in relation to the duty of confidence owed by a personal representative whereby digital assets may cause distress to beneficiaries. For example, a person may wish to keep their medical records confidential or stop an email being read which may cause discord within the family.
In the case of Edwards-Moss and another v HMRC [2016] UKFTT 0147 (TC), in accordance with the general right under Article 8 of the European Convention on Human Rights to respect for private life, it was found that the deceased’s family had a right to expect the medical records of the deceased would be confidential after death.
Likewise, if a personal representative is aware of digital documents which contain information which may devalue the estate, they may have a duty to keep them confidential.
Given the lack of clarity in this area of law, it is recommended that a personal representative seek legal guidance before taking a particular course of action.
ISP terms and conditions
Internet service providers (ISPs) such as Facebook, Instagram, Microsoft and Google typically provide a range of options for how an account should be treated on death. These most commonly include:
- Memorialisation: In the case of Facebook, for example, accounts which are memorialised include the word ‘Remembering’ next to the person’s name on their profile. If permissions allow, friends can share memories of the deceased.
- Deletion: All account content and information is removed.
- Create a legacy contact: Allows the individual to nominate a person who will be allowed access to the account after death.
- Permission to access content: Some platforms allow users to provide specific permission to access content on production of a grant of probate, death certificate, other evidence of death, along with proof of relationship with the deceased.
It is essential to explain to clients that for each online platform they use (and wish to have handled on the event of their death), especially if it contains digital assets of any type, research needs to be carried out as to the respective terms and conditions. No assumptions should be made as to what will happen to digital assets such as reward points, credit, photos, data, books, videos, or blogs etc. The more preparation that can be undertaken in advance which will enable the personal representative to carry out their duties in respect of digital assets, the greater the chance of the process being undertaken faithfully and according to your client’s wishes.
In summary
With each year, the trend is for each of us to have wider and deeper online footprints. This will necessitate greater amounts of time and planning to ensure that all information has been captured and regularly updated prior to death, and while clients have sufficient capacity to do so. And for executors and private representatives tasked with managing digital assets, the task of closing down accounts, transferring digital assets, and dealing with problems will be one which may take as long (if not longer) than for traditional physical assets. Private client Solicitors, therefore, play a vital role in bringing the virtual life of the deceased to an end, in a dignified, considered, and thorough manner, while protecting the interests of the beneficiaries.
