A guide to
digital legacies
Our digital legacies are fast becoming big news in the media.
Times are changing and we are putting more and more
sentimental things online. There are also valuable assets that we
may hold online and these all need to be protected so that our
personal representatives can access them if there is the need or
the want to do so.
‘Digital asset’ is a term which does not
have a precise legal definition. In the US
a digital asset is defined as “a record that
is electronic. The term does not include
any underlying asset or liability unless
the asset or liability is itself a record
that is electronic”. This is not overly
helpful but we do know it includes blogs,
e-books, social media statuses, Tweets,
photographs and videos stored online, and
other things which most of us will have.
The rights of the creator of a digital asset
are ambiguous and the issue has been
side-stepped by many judges in cases.
It seems though that it is likely there is an
element of copyright that can apply to our
digital assets through our online accounts
i.e. Google, Facebook and so on and it
seems the content of for example a blog
or photograph could be capable of being
protected by copyright but the terms
and conditions will be dependent on the
account. For example, some accounts
may have a royalty-free licence for any
content held through their service.
The issue which comes about for digital
assets is in relation to confidentiality.
Internet service providers (ISPs) such as
Facebook are bound by confidentiality
rules and they need to protect themselves.
This is where the media is starting a
frenzy as families want to hang on to their
relatives legacy through means such as
their Facebook account.
Article 8 of the European Convention
of Human Rights establishes a right
to respect for private and family life.
Individuals have a right to confidentiality in
relation to their personal information which
is why online accounts can be difficult to
68
access after a person’s death unless you
have the password to their account, which
really, you shouldn’t have.
It is not clear if a personal representative
has the right to take action for breach of
confidence where a deceased person’s
information has been disclosed. However,
it seems that action can be taken if this
information devalues the estate. For
example, if the person who has died was
famous and something confidential were
released which meant that no one would
buy their artwork anymore then potentially
the personal representative could have a
case due to the estate being devalued.
The US is particularly strict in the way it
handles its privacy and data protection
obligations. For example, not long ago
there was a case which concerned a family
member’s request to access a Facebook
account of a child who had committed
suicide. The matter was taken to court
and it was held that Facebook could not
be forced to pass on personal information
it stored without the consent of the
account holder (i.e. the deceased). It was
held however that they could give away
information voluntarily if they wished to.
As the terms and conditions upon which
information is accessed and stored with
an ISP is different for each account,
account holders should plan ahead
and put in place a plan so that personal
representatives or family can access their
accounts. Most ISPs have te rms in the Ts
and Cs which prevent an account holder
from recording their passwords or logins.
This is fair enough really as they can be
liable if an account is hacked, and so the
best practice to ensure the account holder
does not breach the rules can be to involve
a third party provider of password and
online security. If this were to occur then if
the account were hacked, the ISP would
not be liable under computer misuse
legislation and so ISPs would probably
find this acceptable to them.
In terms of your Will, the public now need
to consider what they want to happen to
their digital assets. Wills dated before 1
October 2014 with clauses incorporating
wording to do with their personal
possessions will find that the definition
does not cover digital assets. So if you
give your partner all of your possessions
and the rest of your estate went
somewhere else, your partner would not
be entitled to your digital assets because
they fell outside of the legal definition at
that time.
The definition of personal possessions
has now changed so that from this
date, Wills incorporating s.55(1)(x) of
the Administration of Estates Act 1925
includes all tangible property, but again it
still does not include digital assets which
are clearly intangible and therefore the
definition in a Will will need to be changed
depending on whether someone has
digital assets they wish to leave.
At Mayo Wynne Baxter it is standard
practice to ensure that we ask our clients
in our standard questionnaire whether
they have ISP accounts with a view that
these can be provided for if needed by our
clients.
By Christina Spencer