Digital legacy

  • Author : Emily Osborne
  • Author : Nicola Plant
  • Date : May 2010
ABOUT THE AUTHORS: Nicola Plant TEP is a Partner and Emily Osborne TEP is a Solicitor at Thomas Eggar LLP

In today’s increasingly digital world, where more and more aspects of an individual’s life are virtual and most networking takes place online, it is important to consider what happens to an individual’s digital legacy on their death.

Emails and social networking sites

Networking sites such as Facebook, Twitter and LinkedIn continue to dominate internet usage; with Facebook now having over 350 million users worldwide. In addition, the electronic age in which we now live means that more and more communication is carried out by email. As a result an individual user accumulates a wealth of very personal and potentially valuable information, records and photographs, all stored electronically.

What happens to this information when a person dies?

Recognition of this question and attempts to find solutions are a relatively recent occurrence.

Historically, Internet Service Providers (ISPs) have viewed their services as a functional, current service to individuals and have not taken a long term view of what will happen to the huge amount of data that is stored by users. For the ISP, the most cost effective solution is to terminate the services on an individual’s death and destroy the information held. However, this is not a satisfactory solution for the individual and there is now increasing awareness that a different solution is required.

During an individual’s lifetime, the information held by ISPs is protected by data protection and privacy laws to prevent the publication or transfer of material to third parties.

However, strictly speaking data protection legislation only applies to living individuals.1 Therefore, on an individual’s death, the information held should be capable of being revealed to the administrator of the estate.

It is important to consider what happens to an individual’s digital legacy on their death
Current climate

There is as yet no uniform approach between ISPs on the issue of what happens after the death of an individual. Instead the question is dealt with on a case by case basis in accordance with the ISP’s general terms and conditions. Many ISPs’ policies require the user to notify them of the exact terms they wish to apply to their accounts and without this, the ISP’s default provisions will apply. This may mean that access is refused to relatives and administrators of the deceased’s estate or that copies of the information held are provided on receipt of a death certificate and proof of identity. At present, few people give this aspect of their digital life much consideration.

A further complication is that due to the global nature of the Internet, the ISP may not be located in the same jurisdiction as the deceased. This may be part of the reason why there is no uniform approach amongst ISPs, as the work involved in ensuring that such a policy is valid and enforceable in each of the jurisdictions in which it has users is too great.

Under English Law the position is clear. The copyright in emails, other writings and photos, as with other personal possessions, forms part of the estate of a deceased individual. Therefore, the ownership of this information should pass to executors and personal administrators. Whilst copyright laws may be clear, there’s little use in having the right to information, without the ability and the relevant passwords to access it. This is where the problem lies.

A recent survey of web users (aged 18–65) carried out by Thomas Eggar LLP revealed that 68 per cent regularly used online social networking sites.2 However, only 8 per cent were aware of what would happen to their online persona or digital legacy on death and fewer than 2 per cent had done anything about protecting it.

The world of virtual goods

It is not only emailing and networking sites which are creating this issue. As an ever increasing number of people turn away from traditional media formats such as DVDs, CDs and books to their digital equivalents, consideration must also be given to the treatment of such virtual goods on an individual’s death.

The current worth of the US virtual goods market is expected to surpass USD1 billion this year.3 The global market is thought to be potentially five or six times as much.

Whilst it is likely that virtual goods would come within the provisions of a well drafted will and be distributed accordingly, attributing a value to such items may prove difficult.

In addition, many sites, which allow downloading of music, books or films, are governed by licensing agreements, which only permit the downloaded items to be used for personal use by the user. Whilst this is vital to ensure protection of the copyright of such material, it does make transferring them after death more challenging. Restrictions on transfer are also likely to severely depress the value of such items. Until private client professionals and HMRC get accustomed to valuing virtual assets, this will be a difficult and time-consuming process.

Other examples of virtual goods include assets accumulated by players of massive multiplayer online games (MMOG) such as World of Warcraft or RuneScape. Players in these games spend long hours accumulating skills, weapons, points and wealth for their virtual character, which in turn have a value in the marketplace. Sony has recognised this value and allows users of its games to sell their accumulated skills etc. via its platform: ‘Live Gamer Exchange.’ Other players in the market have reacted differently, and eBay has banned the sale of virtual assets on its site.

Rise in value

In December 2009 the first case of a hacker stealing other players’ identities, skills, weapons and virtual money was reported in the UK. Unlike the information held in email accounts and social networking sites, which is usually of sentimental value only, it is clear that virtual assets have a real commercial value. The key question is therefore how the administrators of a deceased person’s estate access such virtual assets, value and ultimately deal with them, including the possibility of disposing of them legally.

What’s the solution?

Uncertainty and current ISP policies has in recent years led to the creation of various on-line third party providers who, for a fee, allow individuals to upload passwords and other personal data to their sites, to be passed on to beneficiaries after death.

Another option is to give passwords and access details to ‘trusted’ relatives or friends with instructions of how the user wishes their virtual persona to be used. This could take the form of a letter of wishes, or possibly be achieved through the use of a lasting power of attorney.

However, both of these approaches raise concerns over security, and in the current climate of increasing online fraud, it may not be sensible to provide such valuable information to third parties. In addition, many ISPs forbid sharing of password information as part of their terms and conditions of use.

The best solution, for the moment, may therefore be to ensure an individual’s wishes are documented in a will. It therefore seems likely that private client professionals will need to ensure that consideration of how to deal with assets held in cyberspace (in the form of profiles, emails, blogs, videos, photos, comments, links and even accumulated virtual wealth) becomes standard practice in the world of will drafting.

In addition, the practicalities of how the individual’s wishes are fulfilled needs to be improved and where possible, standardised so that the administration of a person’s virtual estate is as simple as possible for the administrators and professionals involved.

To conclude

Private client professionals face a new challenge in ensuring that their clients make provision not only for their physical assets, but also for their virtual assets and profiles. Until the internet community formulates specific rules and procedures for dealing with an individual’s digital legacy, a well thought out and well drafted will is the best solution to the question of how to preserve our digital legacies. Private client professionals therefore have a key role to play in shaping the preservation of an individual’s legacy of digital memories and valuable material and in ensuring that such memories and assets are passed on following their death.

Data Protection Act 1998 1(1).
See Schedule 4 ‘Digital Legacy Survey 2010’ 26/01/10
‘Virtual goods sales to hit $1 billion in 2009 as social games pay off big’ 14/10/2009 http://games.venturebeat.com.

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