The question of what happens to a person's social media presence after they have passed away is proving troublesome
Have you considered your digital afterlife? As people increasingly live their lives online, we are beginning to witness the consequences of a digital legacy on death.
A reflection of the growing importance of this issue was the second Digital Death Day conference held in London this October to provoke discourse around the social, cultural and practical implications of death in the digital world. The event brought together estate planning practitioners and leaders from the IT industry keen to diffuse the legal fog surrounding our online presence on death.
Social media is an ever-expanding digital forum. There are currently more than 400 million active Facebook users, and countless other sites such as Twitter, Flickr and LinkedIn continue to grow in popularity. These sites provide the user with the opportunity to store valued personal information and records (including photographs).
However, individuals rarely consider what should happen to their digital assets once they have logged off for good and this can cause problems for those left behind, who may wish to have access to these assets for sentimental reasons, or to facilitate the administration of the deceased’s estate.
Unequal in death
During a person’s lifetime, personal information held by networking sites should be protected by data protection laws. Yet those laws cease to apply on death and so such information should be capable of being revealed to a deceased’s executor. However, there currently is no uniform approach among internet service providers (ISPs) as to how relatives/executors of the deceased should access such personal information. As many of these ISPs are based outside the UK, jurisdiction issues may explain the lack of common policy.
Indeed, jurisdictional discrepancies in the privacy laws applicable to individuals on death, and their survivors, could explain Yahoo!’s stringent policy of restricting access to a deceased user’s account, even to next of kin. This most famously came to a head in 2004 when Lance Cpl Justin Ellsworth was killed on duty in Iraq. Following Ellsworth’s death, his father decided to create a memorial to his son using the emails he sent and received while in the Middle East. Yahoo! steadfastly refused the family access to their son’s mail account, culminating in a well publicised lawsuit, unsatisfyingly settled without an authoritative ruling. (Yahoo! finally conceded by offering copies of relevant correspondence from the account.)
On the face of it, under our domestic copyright law, writings and photos posted on social networking sites and email accounts should form part of the deceased’s estate. However, where the ISP is based outside the UK, without clear global regulation on the issue, accessing those files can be a problem for those dealing with the deceased’s estate.
Coming to terms
Larger social media exponents are slowly getting to grips with this issue.
Facebook: currently provides the option of memorialising a profile on receipt of proof of death and authority to act. The memorial profile is locked, preventing access (or, it would appear, recovery of photos posted), but allowing existing “friends” to view the page. Alternatively, close family members or those with authority can request that an account is shut down completely. For the form, see www.facebook.com/help/contact. php?show_form=deceased
LinkedIn: requires that someone fills out a “Verification of Death Form”, which must include details of the deceased’s registered email address. Submission of the form will alert LinkedIn of the need to remove the profile, although anecdotal evidence suggests that even after the closure of an account, profiles may still be viewable on search engines. e: firstname.lastname@example.org
Twitter: a comprehensive death policy was finally instituted this year. Relatives/executors of the deceased must provide contact details and narrate their relationship to the deceased, provide details of the deceased’s profile or post a link to their page and, crucially, attach a link to a public obituary or news article. e: email@example.com
Gmail: an individual may apply for access to a deceased member’s account but must provide government-issued ID, a copy death certificate and proof of past email correspondence between them and the deceased. See mail.google.com/support
Nevertheless, the lack of uniform direction between the above policies is noticeable, and significant numbers of ISPs are lacking any clear polices in this regard. Executors/administrators of a deceased’s estate can often find themselves denied access if they are unable to notify the ISP of the exact terms of the account. Most ISPs will require service of a death certificate at the very least and many still approach these issues on a case-by-case basis, which can be problematic for executors.
Various online third-party providers have sought to offer a solution to these problems by providing digital deposits for individuals to upload their passwords and log-in information that will provide assistance to their executors/ administrators in wrapping up their virtual lives on death. However, in the current climate of online identity fraud, you would be forgiven for worrying about the security of such prime targets for online hackers. For the moment, early consideration of these issues and a well drafted will may be the best approach to the problem of how you deal with your online presence on death.
Looking forward, ISPs have a responsibility to consider the cyber-chaos that relatives can face on the death of a user. As the concept of social media continues its exponential expansion, increasing the scope to divest personal information onto the internet, consistent policies need to be developed across ISPs that put internet users in control of their digital afterlife.
One solution may be a standard nominee option offered on creation of accounts, allowing a user to specify the name and contact details of a person who shall, on verification of identity and proof of the deceased’s death, be permitted to deal with that user’s account and its closure on death. Such a policy has the advantage of allowing the deceased to distinguish their “digital executors” from those appointed under a will (a blessing for those who would like to keep aspects of their online life from loved ones!). More importantly, it would eliminate any element of ISP discretion as to whether to grant third parties access to accounts.
The social media revolution continues at pace and as practitioners, it is important that we start to consider how to make our clients’ digital death as painless as possible for their heirs.
Morna Coutts is a senior associate, Private Client, with Morton Fraser LLP