Digital assets on death – do you really own them?

Wednesday 3 February 2016

Recent headlines of the rich and famous (reportedly Bruce Willis) taking on Apple in the fight to be able to leave digital assets to loved ones on death certainly makes for good reading but just what is someone’s right to pass on digital assets on their death?

There is currently no statutory provision or case law to help us understand exactly what will happen to our Facebook photographs, iTunes music libraries, Spotify playlists, Netflix purchased films etc when we die. It is important to at least have a think about what digital assets you have and ensure you are clued up to what will happen on death.

What rights do you have over your digital accounts and virtual goods?

For starters, it’s important to note that it is the digital provider who currently set the rules, and the rules are different in each case.

Facebook for example, does have a policy about what happens to a deceased person’s account; essentially the account is memorialised i.e. frozen, and becomes inaccessible to the public.  No further changes to the account can be made and any private messages will no longer be accessible to ensure privacy rights of the deceased are not infringed. That being said, Facebook will allow friends and family to read and post messages on the deceased’s wall and view photos and videos already posted. While the policy has good intentions, it does not always meet the needs and wishes of individual families. A recent and well documented story demonstrates this well, and in Louise Palmer’s case she was locked out of her daughter’s account without warning.

The difficulties are not just isolated to Facebook. Other social media companies such as Twitter have developed a policy whereby they will deactivate a deceased’s account on passing.

Also, did you know that e-books purchased online for your Kindle only give you a personal licence to read it, and that you do not actually own it? Every time you hit “buy” at the Kindle e-store you are actually purchasing a licence to read for your personal use only. It does not matter how many times you have read your favourite book, you will be no closer to owning it. To bequeath your favourite e-books to loved ones would require getting Amazon’s written permission which is unlikely. The same goes for music purchased on iTunes. Again, when you purchase music you are purchasing a licence to play it, you do not own it, and therefore you cannot leave your music library to loved ones which is exactly why Bruce Wills is a little less than happy.

So, what should you do? You need to ensure that you protect your digital assets as far as you can and make provision for this. The Law Society’s most recent advice states “people should leave clear instructions about what should happen to their social media, computer games and other online accounts after their death” and “having a list of all your online accounts, such as email, banking, investments and social networking sites will make it easier for family members to piece together your digital legacy, adhere to your wishes and could save time and money.”

They also state that “making your wishes clear is preferable to leaving a list of passwords or PINs as an executor accessing your account with these details could be committing a criminal offence under the Computer Misuse Act 1990. It is enough to leave a list of online accounts and ensure this is kept current”.

In summary

Everyone should think about what digital assets, accounts and virtual goods you may have, and make your wishes clear so that it is easier for loved ones to recover sentimental digital content if they ever need to.