News and Insights
28 September 2016
Digital assets should be viewed as a form of property
Today we communicate across many different digital platforms, be it by e-mail, on Facebook, Linked-In or Instagram. But with such a rapid advance in digital technology in the last 10 years, how many of us have thought about, or taken steps to preserve our personal digital records for the long-term? As a Generation Xer (1966-1976), I have embraced the digital age and have swapped my filing cabinets for online storage and photographs for digital images. Many of us create and scatter our photos, videos and thoughts with abandon on our mobile devices and home computers. We pay bills, buy and sell things online and enjoy the convenience of online banking. For Generation Z (1995-2012), however, the digital world is second nature. It is not uncommon to see a two year old swiping their way through a tablet to watch an episode of Peppa Pig, or primary school children using Twitter and Snapchat to promote their business in an ‘Apprentice’ style competition.
Digital assets should be viewed as a form of property. They can be transferred or bequeathed to those who you wish to receive them by way of a will. However, unlike physical property, digital assets are intangible and invisible. The rights of ownership, control and access of digital assets are intertwined with complexities of privacy and security protection as laid out in various service provider policies. Since there is little inheritance law guidance to help negotiate these complexities, it is important to develop good recording habits so that your digital assets are documented and findable.
Recent research in the UK by the Law Society of England & Wales has suggested that 71% of people said that they had never thought about what would happen to their digital legacy, such as social media and online accounts, online photos and music libraries when they die.
Do a digital audit
Viberts’ personal law team recommends leaving clear instructions about what should happen to your digital legacy after you die. Not doing so could mean that important information or sentimental material is never recovered. Do not assume that your loved ones will know where to look or have the legal authority to deal with your digital legacy.
I would advise dividing such assets into ‘digital assets’ and your ‘digital presence’. Digital assets will include your music, film and book collections that that you have bought and downloaded online as well as any online bank accounts or investments that you may hold. But be vigilant here as when you download some digital content, you only pay a licence to use it during your lifetime and you cannot transfer ownership once you die. Currently the best you can do in such circumstances is to grant shared access to your digital library. A will trust could also be considered, but this would be complex and costly.
Anyone with digital assets should list what and where they are in a personal asset register so that those dealing with your estate will be able to locate and access those assets. This is preferable to leaving a list of passwords or pin numbers, as an Executor accessing your accounts in this way could be committing a criminal offence or could be in breach of the terms of the service provider. It is enough to leave a list of online accounts and ensure that this list is kept up to date.
Digital presence includes any social media accounts, e-mail, or personal websites which make up your online footprint. In the case of digital presence, many people want to be able to shut down the online accounts of loved ones after their death but may struggle to do so because of the terms of the account’s policy. How many of us click on the ‘I agree’ button consenting to the terms of service without ever actually reading the policy? The results may be surprising.
If you have a digital presence, it would be worthwhile reviewing the policies of each of your providers. This will allow you to establish what their terms and conditions are in the event of your death. Yahoo for example currently has a policy which states that user accounts are non transferable, and any rights relating to the user’s account terminate upon death. This will also highlight if there are any steps that you need to take to preserve your accounts for your loved ones in the event of your death. For example, if you have a Twitter account, your family may wish for it to be deactivated. If you have left clear instructions to this effect, it will be much easier for your Executor to have it closed down.
Facebook was one of the first to introduce a feature to allow members’ profiles to be ‘memorialised’ when they die, following complaints that users were being encouraged to get in touch with deceased friends. A nominated person, a ‘legacy contact’, can now contact the social network to have a deceased’s profile converted into commemorative pages. In addition, you can give your legacy contact permission to download an archive of the photos, posts or profile information they shared on Facebook. Alternatively, people can inform Facebook if they would prefer to have their account permanently deleted after death.
You should also review your online shopping accounts and memberships, particularly ones where the site has stored your card details for future use. Amazon is good example of this. This presents a real security risk and an opportunity for fraudsters.
In summary, dealing with your digital assets and presence before you die will make it much easier for your loved ones to piece together your digital legacy, adhere to your wishes and will undoubtedly save time, money and much emotional upset. It would be extremely useful for your Executor if you could leave a list of your digital assets, details of your digital presence and a list of all of your online shopping accounts with your will or with a loved one. You will then have dealt with your digital legacy as carefully as you have dealt with your tangible assets.