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Despite living in a digital era, what happens to our digital assets on death is a question that largely remains unanswered. There is no universal rule as to what happens to your digital assets on death.
The General Data Protection Regulation (EU) 2016/679 (“GDPR”) makes provision for Member States to decide what they think should happen to their citizen’s personal data after they die. The Regulation does not apply to the personal data of deceased persons. Member States can provide for rules regarding the processing of personal data of deceased persons. The UK has not yet created such a provision. The Data Protection Act 2018 defines personal data as “Any information relating to an identified or identifying living individual”. When this legislation was drafted, it did not take account as to what happens to our data after death. Any request under the Act will mean that a social media outlet or equivalent will not have to hand over any data that it holds.
In a recent case, where a father unexpectedly died leaving behind his wife and their young child, Apple would not release the thousands of family photographs and videos to the deceased’s family. Apple’s iCloud states that accounts are non transferable and the contents of an account will be terminated on death. This was devastating for the family. It resulted in an application to the Court which was ultimately successful. It is unfortunate that it was necessary to seek a Court Order to simply access a deceased’s digital assets.
Digital assets are treated differently to physical objects and how they have been left in a Will. Of course, if the digital assets are simply left on a laptop or phone that you can access, this does not cause any complications provided the family have the passwords. Presently, you cannot leave your digital assets in your Will, you can however leave the digital property rights associated with digital assets, such as the copyright. Unfortunately, the legislation has not kept pace with the digital era.
The difficulty arises in the common situation where data files are stored remotely by companies such as Google, or Facebook and Apple.
With Facebook, users can appoint a “Legacy Contact” to manage their account post death, which results in it becoming a memorialised account, or have it completely deleted. Twitter allows for a “Verified Immediate Family Member” or a “Person Authorised to Act” on the Estate’s behalf to request deletion of an account. LinkedIn allows for anybody to request closure and the removal of an account on completion of a Verification of Death Form. Google also allows you to have someone to access your accounts after death. Unfortunately, Instagram does not grant users the ability to do this, but it does allow family members to request that the account is memorialised as with Facebook, meaning that the account cannot be logged into or altered but the content will remain visible. This has recently been in the news with the case of Mollie Russell and her parent’s access to her Instagram account.
Dealing with digital assets after death can be complicated. It can lead to rather bizarre situations on death. To ensure your family has access to your digital assets, you should include a clause in your Will that specifically deals with your digital property rights. Whilst this does not give complete protection, it should assist once the legislation catches up with modern technology.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Dispute Resolution Team at Cleaver Fulton Rankin for further advice or information.