Digital Assets and Personal Data
12 / 05 / 2021
We are holding increasingly valuable items online, but the law as to how such items pass on our death is far from clear. Digital assets can include software, downloaded content, and even online gaming and gambling accounts. In Britain alone, The Economist has recently estimated holdings of digital music may be worth over £9 billion. It is, however, important to distinguish between what is an online asset and what is personal data and who can access your online accounts after you die. This was highlighted in a recent case in the United States of America.
The Case of Benjamin Stassen
Benjamin Stassen committed suicide in late 2010 without leaving a note. As personal representatives of his estate, his parents sought access to his online records for an explanation as to why he committed suicide. They contacted Google and Facebook asking the companies to release their son’s passwords so that they could access his G-Mail and Facebook accounts. Both companies refused on the grounds of privacy.
Most online service providers bind users by their terms of business. Personal representatives can close a Facebook account or turn it into a ”memorial page” but cannot access it. Google will supply executors with copies of e-mails from a G-Mail account but again will not allow access to a deceased user’s account.
Benjamin Stassen’s parents obtained a Court Order forcing Google and Facebook to give them access to their son’s records. Google complied with the Court Order. However, whilst the Order released Facebook from their duty of client confidentiality, the company is standing by its policy of not allowing personal representatives access to accounts, and to date has not allowed the Stassens access to their son’s account.
You can see why Facebook may not want to grant Benjamin’s parents access to his personal data. The law in relation to privacy is a tricky one. The law in the US is, of course, different to the law in England and Wales. In England there is no specific law about privacy. Article 8 of the Human Rights Act 1998 is often cited by celebrities in relation to a breach of privacy, but this only applies to state bodies and not individuals and there is no specific case law about the release of personal data to executors or personal representatives.
The best way to deal with online personal data is to leave specific instructions in a Will stipulating that executors may have access to online accounts and whether these accounts should be deleted after death. As a Will becomes a public document after death, it may not be wise to include passwords in the Will itself, in case a third party gains access to dormant accounts which have the same passwords. However a Letter of Wishes, which is a personal document to executors, could be written setting out passwords and specific wishes in relation to individual accounts.
The emergence of cloud computing has led to assets being stored on remote servers which may be located in jurisdictions outside the UK. For example, Apple’s i-Cloud which stores music, films, TV and any other downloads made by a user together with e-mails and personal data. Apple’s policy is to delete all e-mail and data from i-Cloud following the death of a user. However all content downloaded on its i-Tunes service is subject to a licence which can be revoked on a user’s death. Apple will not comment on how it will treat downloaded content following a user’s death but it seems that they would have the right to revoke the user’s licence and delete potentially valuable content.
As digital assets are not tangible property it seems unlikely that a person could bequeath their online music collection to beneficiaries in their Will in the same way as they would could leave, for example, their C.D. collection. This is because the C.D. collection is a physical object which can be left in a Will whereas digital assets are not defined by law in the same way.
Clearly the law in this area has not yet caught up with technology. However, enterprising companies have exploited the gap in the market for bequeathing digital assets. For example, Legacy Locker allows people to store online passwords so that executors and personal representatives can access online accounts following their death.
The best way to deal with online assets may be for a person to stipulate a clause in their Will that their executors can have access to all online accounts and then in a separate Letter of Wishes direct how the executors should deal with these online assets. As the executors will be at the mercy of the service providers and there may also be jurisdictional issues we are sure to see a rise in cases in this area.