As our lives become increasingly digitised, the need for robust legislation to govern the management of digital data after death has become imperative.
In an era where personal information and online identities persist beyond our lifetimes, individuals should have agency over how far their digital footprint extends posthumously. In this article, we delve into the inadequacies of the current legal framework, the importance of comprehensive legislation to grant people control over their digital data after death and ways in which practitioners can assist clients in safeguarding their clients’ digital legacies and identities.
Defining Digital Assets
Digital assets encompass a broad range of intangible possessions stored or accessed digitally. These may include social media accounts, email accounts, cloud storage, online subscriptions, digital currencies, intellectual property rights, digital media (for example, photos, videos, music) and other online accounts or platforms holding valuable information or resources.
The Need for Legislative Protection
The law has traditionally focused on tangible assets, leaving a regulatory gap when it comes to digital assets and their transfer on death, In the absence of comprehensive legislation, individuals risk losing control over their digital identities and the sensitive data they leave behind. To ensure that individuals’ wishes regarding the use and preservation of their digital data on death are respected, it is crucial for the law to address this emerging aspect of estate planning and data protection.
Accessing Digital Assets
Digital assets are generally treated like any other form of property. This means that, in the absence of any specific provisions or instructions to the contrary, they will be dealt with under the deceased’s will or the intestacy rules, just like any other asset. However, there are a few key differences worth noting. Firstly, unlike traditional assets such as property, vehicles or bank accounts, there is often no physical documentation or evidence that proves ownership of digital data. This can make it difficult for executors or beneficiaries to identify and access these assets, particularly if they are stored on different devices, platforms or cloud storage services which are often password-protected.
Under the Computer Misuse Act 1990, accessing a deceased person’s digital device without authorisation is often considered an offence. This poses difficulties for personal representatives to safeguard the deceased’s digital profile and to distribute any digital assets in accordance with the deceased’s wishes. The Digital Devices (Access for Next of Kin) Bill had its second reading in Parliament on 6th May 2022 with the aim of allowing authorised individuals, such as close family members or personal representatives, to access the digital devices of the deceased. The bill suggests amendments to the Computer Misuse Act 1990, creating exceptions for authorised access. It defines who can access the devices, outlines the access process, and emphasises privacy and confidentiality protection. Whilst the bill represents progress, it is, of course, not yet law.
Terms of Service Agreements
Another significant issue facing digital data on death is the fact that many online service providers have their own terms and conditions dictating what happens when a user dies. For example, some social media platforms allow for the account to be memorialised and accessed by a designated person, while others automatically delete the account. The rules can vary for different providers and it can be challenging to determine what will happen to specific accounts after death.
Legal Developments
The Law Commission has acknowledged the challenges posed by digital assets and has proposed reforms to ensure their appropriate treatment. While these proposals are not yet law, they offer insights into potential future developments. Among the recommendations are providing statutory definitions for digital assets, clarifying the executor’s powers to access and manage digital assets, and establishing a centralised system for registering digital assets to simplify the administration process.
Ghostbots: A New Age
The rise of artificial intelligence has given birth to a new concept known as ghostbots: AI-powered programs designed to mimic deceased individuals and allow users to interact with virtual versions of the departed. While the idea of connecting with loved ones from beyond the grave may seem intriguing, it brings to light a series of legal challenges relating to the inheritance of digital data. The question arises as to who exactly has the legal right to access, modify, or delete the digital data associated with a deceased individual and this uncertainty increases the risk of misuse and exploitation.
The Importance of the Practitioner
The digital revolution has undoubtedly brought forth a new set of challenges regarding the treatment of digital assets upon death. As the legal landscape continues to evolve, practitioners have a pivotal role to play in assisting clients with managing their digital legacies. Some key steps practitioners can take include:
- Educating clients about the importance of incorporating digital assets in their estate planning. Practitioners should emphasise the need to consider digital data management, including social media accounts, online subscriptions, cloud storage, cryptocurrency, and intellectual property rights.
- Drafting wills which explicitly address digital assets. This may involve detailing instructions for managing or deleting accounts, appointing digital executors, or specifying preferences regarding the use of digital data.
- Regular review and updating: Practitioners should stress the importance of regularly reviewing and updating estate planning to reflect any changes in digital assets or data management preferences. By conducting periodic reviews, individuals can maintain control over their digital legacies and adapt to new legal or technological developments.
Summary
It is high time that the law catches up with modern day estate planning. Our digital lives are becoming more important than ever, and yet, in the absence of legislation on inheritance, they remain vulnerable to exploitation after we pass on. Until the law adapts to address the complexities of the digital age, practitioners play an increasingly critical role in helping clients to protect their digital footprint and identity as far as possible within the confines of the current legal framework.
Written by Penelope Samuels, in the Wills and Probate team at SA Law.
