These days, we carry out the majority of our work and leisure activities online in forums or platforms such as email, Facebook, Instagram and LinkedIn. Whether we are conscious of it or not, we are creating and adding to our digital legacy every day.

What happens to our digital legacy after we die?

This will depend on:

  1. how well the person recorded their accounts and login details
  2. the terms and conditions that apply to the use of the account
  3. the available technological functions to carry out the person’s wishes related to that account.

Some people or their family members prefer to delete the accounts altogether. Other family members of the deceased prefer to obtain access to the accounts or even to create a virtual memorial from them. Academics and agencies such as State Trustees of Victoria have suggested that we create a ‘digital register’ of passwords and account locations, with instructions as to what to do with the account posthumously.

What options family members have in relation to their loved one’s account will also depend on the relevant service provider’s terms of use. For example, some cloud service providers such as Google Cloud Platform have authentication procedures that a person must go through before being allowed to access stored materials. However, other service providers have strict rules around transferring an individual’s account to someone else.

Of course, the availability of technological functions will affect family members’ ability and options to carry out a deceased person’s wishes. Facebook has a memorial function where friends and family can post comments with a moderator and share the memorial profile.

What are the legal and ethical dilemmas?

  • Privacy: The service provider may not have obtained the deceased person’s consent to disclose their personal information to their family members and the deceased person may not have wanted certain content to be disclosed. Moreover, other people’s personal information will be affected by the disclosure.
  • Risk of online abuse when using ‘memorial’ features: A classic example is the bombing in March 2006 of a World of Warcraft funeral held for a player who had died of a stroke. The player’s friends decided to have an in-game memorial for her at the Frostfire Hot Springs in Winterspring but sadly, Alliance Guild Serenity Now slaughtered all the attendees. Maintaining an online memorial against abuse by trolls can be emotionally draining.
  • The rights attached to digital assets versus rights to physical assets: Digital assets like the iTunes copy of the top 40 songs do not carry the same rights as a good old-fashioned CD or book. Unlike CDs and books, purchased digital files of books and music are simply a licence to use the works, which often expires once the account holder dies.

So what to do?

  1. Keep track of your accounts and login details.
  2. Store hard copies of photos that you wish your family to keep.
  3. Understand that when you buy digital copies of music and books that you are only getting the right to use them, not to lend or bequeath them.

This article is based on the “Hypothetical – Death and the Internet” panel discussion involving Brendan Coady (who is a partner at Maddocks) at the ACCANect conference held on 14-15 September 2016.