Digital legacies stuck in legal quagmire

Regulators on both sides of the Atlantic are being urged to draw up privacy legislation covering a deceased person’s digital assets after claims that no laws currently exist to cover the issue.
The matter was highlighted last month following reports that Hollywood star Bruce Willis was considering suing Apple after being told he could not leave his extensive iTunes collection to his daughters, because users do not actually own the downloads. Willis has since denied the move.
Yet this week a panel discussion at the Amsterdam Privacy Conference heard that fragmented legislation provides no conclusive answer to the question of who should be allowed to access or delete someone’s social networking profile or email correspondence after they die.
Companies vary widely in how they treat online accounts after an account holder dies. Finance firms typically require a death certificate plus other details, such as grant of probate and the executor’s ID. But when a Facebook user dies and the company is informed, it “memorialises” the profile, hiding features such as status updates, and allowing only confirmed friends to view the timeline and post on the profile.
But this is not without its issues, the Amsterdam Privacy Conference panel heard. For instance, if a friend posts a picture on the deceased’s profile showing them drunk at a party this might give solace to the poster, but family members could want to remember them in another way.
One panel member – Edina Harbinja, a PhD student at the Law School of the University of Strathclyde – highlighted the different European laws on the subject.
In Bulgaria for instance, the heirs of the deceased can exercise the rights of their family member, she said. In Estonia, meanwhile, if someone gives their consent to the processing of their personal data by an online service, that consent is presumed valid for 30 years after their death, unless they indicate otherwise. Conversely, in Sweden and the UK, personal data is defined as something that belongs to the living, said Harbinja.
The draft of the European Data Protection Directive does not mention deceased’s data in any context, she added.
According to a separate survey by online legal service Rocket Lawyer, nearly two-in-three people say they don’t know what will happen to their digital assets when they die. Just 10% of UK citizens say they have included passwords in their wills or planned to do so, ensuring their digital inheritances would be taken care of.
Nicola Plant, a partner at solicitor Pemberton Greenish, claims the issue is fast becoming a major concern for families grappling with a deceased relative’s estate. She said: “It’s vital you leave your account details and passwords in your will or as an addendum. Otherwise, your executors will not be able to distribute your online assets and alert organisations to your death.”