Gone are the days when someone’s assets consisted of their house, a car and some black and white photos. A whopping 3.431 billion people are plugged into the internet worldwide as of August 2016 and most clients we see have some form of Digital Assets – that is, anything you own or have certain rights over that exists online or are stored on computers or other digital technology.
Take a moment to consider your digital technology, which may include any one (or perhaps all) of the following:
- SMS’s on your phone, or messages on instant messaging services (Messenger, Whatsapp, Telegram etc);
- content on your smart phone handset;
- social networking content, or licences;
- e books, streaming content services, digital downloads; and
- PC’s, laptops, tablets and other computer devices.
Now take a moment to consider what would happen to your digital technology once you die. Specifically, consider:
- who can access (and how do they access) your email, social media accounts, dating profiles, online passwords, online banking records, media hosting services (eg Instagram, Flickr) or professional blog when you die;
- what happens to the documents, files and photos on your cloud Storage (for example, Google Drive, Apple iCloud, Microsoft Skydrive);
- what happens to your online assets (for example, funds in your Paypal account, downloaded music and movies or streaming services, Airline Frequent Flyer points and cryptocurrencies);
- what happens to the photos, messages and data stored on your phone, laptop or tablet;
- how can you ensure your “digital life” is removed from the worldwide web once you have died
The Legal Position – How are digital assets dealt following death
A proper Estate Plan therefore requires a consideration of the rights to the asset and/or intellectual property as well as the policies with regard to the service or host provider.
Let’s run through some of the most commonly used platforms and assets:
Social Media eg Facebook , Instagram, Youtube – the basis of most social media sites is to provide free content hosting in exchange for the user granting the site a licence to use the content. The Terms of Service set out the terms of the licence.
It is a well-known fact these days that a Facebook user for example, has no ownership in the content of the material they upload onto their social media account. The Facebook Statement of Rights and Responsibilities specifically states that “you grant us (Facebook) a non-exclusive, transferable, sub-licensable, royalty free, worldwide licence to use any IP content that you post on or in connection with Facebook”.
If the user does not “own” the content posted on these social media sites, neither does their executor of their estate. Using the example of Facebook, once you die, a friend, family member, or your executor can request to have your user account memorialised or permanently removed from Facebook. Even if an account is permanently deleted, Facebook is entitled to retain the rights and sublicense to everything that has ever been uploaded onto the user account.
Apple ID Account – The Apple Media Services Terms and Conditions generally states that once media is downloaded, you do not actually own or obtain legal title to the media – you simply obtain a licence to use the media. Licences are generally not transferable to your executor or beneficiaries. Generally speaking therefore, your Apple ID account and downloaded content will not form part of the estate. There is the option however with family sharing to transfer material from one computer to the next, and therefore that might be the solution to ensuring the digital library is accessible after death.
Google Account – your Google Account is perhaps the most important account to access after you die. Google offers a number of online services including Gmail, Google Drive, Picasa and Google Plus. The Google Terms of Service that’s that the user retains ownership in the intellectual property, but (similar to most social media sites) when content is uploaded onto any Google product, google is given a worldwide licence to use the content and that licence continues indefinitely.
If your Executor wants access to your Google Account, they will need to contact Google administrators and seek access, which may not always be granted (as per the Terms of Service).
Cryptocurrencies – Cryptocurrencies are not backed by any government regulator. Instead people often store their Bitcoins in an encrypted “digital wallet”, usually via an app on their phone or laptop. Digital wallets often use two keys to allow the owner access – a public key that anyone can see and a private key. If your Executor or Beneficiaries do not know this key, there is almost no way they can access your Bitcoin. On the other hand, providing this information to your Executors or Beneficiaries during your lifetime may compromise the security of the Cryptocurrency.
How should I deal with my digital assets
Once our digital assets are identified, they are treated much the same as any other asset. From a practical sense, what should you do to assist your family, next of kin or executor in dealing with or even erasing your “digital footprint” once you have died?
This question is very personal and specific to many. In some cases, it would be appropriate to leave a list of your usernames, passwords and “keys” to the online assets so they can be dealt with. But perhaps not always.
A holistic review of your Estate Plan should involve a consideration of your digital assets, Intellectual Property laws, an understanding of common platforms and a sensible approach in managing these assets after you are gone.