Law Reform Commission to review access to digital assets after death

The New South Wales Law Reform Commission (the Commission) is inviting public submissions as part of its review and report on the laws affecting access to a person’s digital assets if they die or become incapacitated. Digital assets are an individual’s digital property and electronic communications, and include online bank accounts, cryptocurrency, social media accounts and blogs. Submissions are due 1 June 2018.

There is currently no law in Australia addressing the ability of family members or fiduciaries to access a person’s digital assets upon their death or incapacity. Conflicts arise in the context of user agreements which generally impede surviving family members and fiduciaries from accessing a deceased person’s digital assets, that is, access is currently determined by contract and private international law.

Despite the absence of specific Australian legislation, there are several relevant legislated areas which will assist the Commission make recommendations for a new law. These areas include intellectual property, privacy, crime, estate administration, wills, succession and assisted-decision making.

The Commission’s terms of reference include making a recommendation whether NSW should enact legislation about who may access a person’s digital assets after they die or become incapacitated and in what circumstances.

International laws

Although not directly analogous to the Commission’s focus on deceased or incapacitated persons, the United States of America and Canada have developed laws which establish how an individual’s digital assets are managed.

The Revised Uniform Fiduciary Access to Digital Assets Act (2015) has been enacted in 38 American states and enables individuals to provide instructions on the management and dispossession of their digital assets. However, the American definition of ‘digital assets’ only includes electronic records in which the individual has a property right or interest. Where an individual’s instructions address the ability of family members or fiduciaries to access their digital assets upon their death or incapacity, these instructions are prioritised over service access agreements. However, if the individual’s instructions do not explicitly grant fiduciary access to their digital assets, then fiduciaries can only access a record of the individual’s electronic communications but not their content. Where there are no instructions, the terms of the service agreement will be followed.

The Uniform Access to Digital Assets by Fiduciaries Act (2016) is a Canadian statute which provides fiduciaries with the right to access digital assets. Bearing close similarity to the Australian definition, digital assets include any type of electronically stored information. This includes content uploaded on a website. However, fiduciaries do not own the asset and are prohibited from undertaking transactions with the assets.

Considerations

The Commission will consider:

  1. Relevant laws including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted decision-making
  2. Policies and terms of service agreements of social media companies and other digital service providers
  3. Relevant jurisdictional issues, including the application of NSW laws, Commonwealth laws and the laws of other jurisdictions
  4. Appropriate privacy protections for the electronic communications after a person dies or becomes incapacitated
  5. The Uniform Law Conference of Canada’s Uniform Access to Digital Assets by Fiduciaries Act (2016) and the American Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act (2015)
  6. Any other matters the NSW Law Reform Commission considers relevant.

The review and its recommendations will affect the public sector as well as the private sector as an unprecedented amount of information is now created, stored and shared online. For example, the Commonwealth government’s consolidated online services platform, myGov, enables registered users to upload their documents to government services including Medicare and the Australian Taxation Office and receive documents electronically. Transport for NSW’s digital ticketing system also gives rise to digital assets associated with user accounts. Accordingly, matters that have until now not been provided for in, for example user agreements in respect of such services will be impacted by any law reform arising from the Commission’s recommendations and if adopted will require a range of policies and contractual provisions to deal with these user rights and consequential government obligations.