If you keep photos on your hard drive, money in a PayPal account, use cryptocurrency, send emails, store contacts on your mobile phone, videos on your iPad or have one (or multiple) social media account/s then you – like the majority of your fellow Australians – have digital assets.
I’m guessing that the majority of you haven’t given much thought as to the legacy of those assets in the untimely event of your incapacity or death.
There have been a number of cases overseas where family members have pursued litigation for access to a deceased person’s online accounts. No such issues have yet come before Australian courts that we are aware of. Whilst a number of US States and Canada now have legislation in place to deal with the distribution of digital assets, Australian law has almost nothing to say on the topic. The NSW Law Reform Commission is currently examining the matter and will, during the next 12 to 18 months, decide whether NSW should enact legislation about who may access a person’s digital assets after they die or become incapacitated and in what circumstances. A number of laws are relevant in this context. They include contract law, private international law, criminal law, privacy law, property law, copyright law, succession law and estate administration law.
The ownership of your digital data is spelled out in the hundreds of pages of user agreements that you (often inadvertently) sign when setting up a user account.
One US study suggested that it would take an average internet user 76 days just to read all the terms and conditions they agree to each year.
Most people have no idea what would happen to their online data in the event of their death.
Consider Facebook as one example. There are 2.2 active billion Facebook users [March 2018] – of whom 30 million died in the first 8 years of the company’s existence. 10,273 users of the popular Platform die each day. What happens to all that data? Who owns it? You might be surprised to learn that Facebook owns the data UNLESS prior consent to access it is obtained from or decreed by the deceased or mandated by law (a mandate which doesn’t currently exist in Australia). Without that mandate Facebook has the right to memorialise a page which basically freezes it with the same permissions as it had when the deceased user last accessed it; or the account can be set up to be deleted once Facebook is advised of your death or a legacy contact can post on your behalf (but can’t change any historical posts).
Instagram, Twitter, Snapchat, Tumblr, Yahoo and Linked In allow immediate family members to request the deactivation of a deceased person’s account (death certificate and other ID required) but the account cannot be accessed.
iTunes and Amazon do not allow your music/Kindle library to be bequeathed to family members. You paid money for the music/books but under the terms of the agreement you only rented the items not purchased them so cannot pass them on.
The collision of technology with the way we use personal information in the 21st Century makes it imperative that the law keeps pace. Equally it is vital that you have a frank discussion with your legal practitioner about your digital estate and how you wish to plan for it be managed should you become incapacitated or pass away.
The contents of this blog, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.