Saturday 28th January had the snappy title of Data Protection Day. Everything that we do online leaves digital footprints and whilst these scraps of information may seem unimportant in their own right, they add up to make a picture of you. Data Protection Day raises awareness of this and seeks to promote good data privacy practices.
The original focus of the day was on businesses, yet the increasingly wide usage of the internet has expanded the scope to include families, consumers and institutions. Parents are encouraged to educate their children on how to act online in a safe manner and we are all encouraged to consider what would happened to our data and digital assets in the event that we become incapable of dealing with things ourselves or pass away.
If someone loses capacity or dies, the person responsible for dealing with their estate traditionally looks through their bank statements and other financial documentation in order to identify their assets, complete the necessary tax returns and deal with the estate accordingly. If, as is increasingly the case, many of our assets are only referred to via email, how can a person dealing with an estate be certain that they have found all the assets – particularly if they don’t have the deceased person’s email address or passwords?
A digital asset is essentially anything that is stored in a binary format. In general, this means any accounts that you open online - including email, social networking and photo sharing - as well as websites and domain names which you own. It includes the items stored on your computer or online account, such as photographs, Word documents, family videos, emails, instant messages, spread sheets and Facebook entries. For many of us, assets of financial or sentimental value may be stored in the Cloud, and if no one knows where to look, these assets might be lost forever.
No statute or case law exists to deal with the ownership of virtual goods, so it is up to the content provider to decide what consumers are allowed to do with their digital assets. Most content providers’ terms and conditions simply give a user a lifelong license which ceases on their death. As time passes, companies have begun to introduce policies regarding using digital assets, however, these are ad hoc and vary according to the provider. Whilst under English law, the copyright of emails and other material stored online should form part of a person’s estate and pass to the executors, the lack of relevant statute means that the internet providers control access, which they do not always allow. Indeed, many of the main email servers are based in foreign jurisdictions and are, therefore, not subject to any English or EU provisions.
Until relevant legislation has been introduced, it is up to individuals to decide what to do about their digital estate on their death or incapacity. At the very least, you should prepare an inventory list of your digital assets so that your representative knows what you have and where to find them. This should include the hardware devices, email and social networking accounts, financial accounts, domain names, web pages, blogs, etc., intellectual property and other media accounts.
Some email and social media providers such as Gmail and Facebook allow you to nominate someone to access your account after you have passed away.
Some providers now offer an online safety deposit box in which you can store your usernames and passwords. These details are then made available to a nominated person following your death. These do, of course, have their own potential risks and, as with any form of storage, there is a danger that they could quickly become out of date. Alternatively, you could choose the old fashioned way of doing things and keep a written note with your Will but again, it is important to keep the list of passwords, etc., up to date.
Once you’ve reviewed your digital assets, you need to decide what should happen to them on your death. You might want to include a digital assets clause in your Will, perhaps allowing your executors the discretion to decide who should benefit from any digital assets with monetary or sentimental value, or you may wish to be very prescriptive and state exactly what is to happen to each account on your death. You might also want to consider appointing a separate digital executor to deal with these things, particularly where your chosen executors are perhaps less tech-savvy.
It is important to remember that, even if passwords to online accounts are available, the accounts of a deceased person should never be managed online without following the appropriate procedures. The asset holders would need to be notified of the death, and their procedures followed to close or transfer the assets.
The use of data is changing day by day, and the way in which you choose to store your information is, of course, up to you. You do need to remember, however, that a vast wealth of assets is held online and you need to make sure that you have the control over those assets that you think you have. Even more importantly, you need to make sure that someone else has control over those assets if you are no longer around to access them.