An increasing number of the services we rely on have moved online – this article introduces the implication of this when we die by considering the ownership of, and access to, your digital assets. This question is relevant not only to friends and family who wish to retain personal digital assets. It is also vital to ensuring business continuity, particularly for sole traders, family businesses and SMEs.
For the purpose of this article, digital assets are defined as intangible assets that are accessed on a digital device. In most circumstances, those assets will be accessed under an agreement with a third party – for example, the pictures/videos taken on an Apple device and saved to iCloud.
An important distinction to bear in mind when considering access to digital assets is the difference between ownership of the material published to an online account/profile/platform and ownership of the account itself. Whilst the account holder will usually have rights in the content that they upload or save to an online platform, they will often only have a right to access the platform on which their content is held (for example by way of a licence); not rights over the account itself. It is this distinction which causes difficulty following an individual’s death – whilst you may have a legal right to the content, you may not have a legal right to access the account to recover it under the terms and conditions of the platform.
This article will focus on social media and storage sites, as these contain some of our most valuable digital assets (both from a personal and business continuity perspective).
Social media and back-up accounts contain some of our most sentimentally valuable digital assets.
Social media channels are aware of the value of the assets they hold and most have specific terms and conditions relating to what happens when you pass away. For example, whilst Apple’s terms and conditions provide that your account is non-transferable (and your rights terminate on death), there is precedent showing that they will transfer an account on receipt of the grant of probate and a court order. Several platforms offer memorialisation settings or deletion of the data held, often giving you the opportunity to name those individuals who should carry out your wishes in that respect.
A popular solution is to use a secure password storage facility to ensure that your loved ones have all of the appropriate details to access your accounts on your death. However, although this is a practical solution it is not advisable as survivors would not generally have permission to access the deceased’s account under the provider’s terms and conditions of service. It is also worth bearing in mind that our increased reliance on biometric data to access our devices (and certain accounts) will add a new layer of complexity in this regard as we cannot currently leave this data in a format our loved ones can use following our death.
Another contentious issue is in respect of the music and other media individuals have purchased during their lifetime. Unless a permanent file has been downloaded during the deceased’s lifetime, it is normal practice that successors will not only lose the right to access the relevant account on the individual’s death, but they will also lose the right to access the content previously purchased. This will of course depend on the terms on which the deceased purchased the digital content, meaning that you should review these terms carefully when considering what assets you would like to leave to your family or friends.
At present, these issues points to a technophobic solution: making physical copies of the digital assets you value and wish to transfer to your friends and family on your passing, or at least downloading digital copies onto your devices/a physical back-up drive.
Businesses cannot die in the same way an individual can, however the same loss of access issues may arise for businesses on the death of a key individual. This may ring true in particular for small businesses who have purchased services (cloud storage facilities, etc.) and licences (software, online reference publications, etc.) in the name of the deceased individual rather than in the name of the business.
To ensure business continuity, any services relied on by your business should be purchased or subscribed to in the name of the business. Careful consideration should be given to the access, back-up and recovery provisions in your IT contracts.
A further concern may be that intellectual property rights in digital materials created by consultants, web developers, or even in some circumstances employees, have not been properly assigned to your business prior to the individual’s death. This could leave you in the difficult position of needing to obtain a licence or an assignment from their successors. With this in mind, it is important that you review your contracts and ensure that adequate assignment provisions are in place.
Our reliance on digital services is such that the market is ripe for legislation and legal precedent, determining how these matters can be quickly and easily resolved. However, that is not the case yet.
Although clients are often reluctant to plan for their death, this is one of the most important ways in which you can make your passing easier on the people who are close to you. Ensuring that you have a will and keep up to date records is part of that.
In the context of digital assets, this means reviewing your service providers’ terms and conditions and being aware of what will happen to your assets when you pass away. For most online service providers, these terms will have been provided to you when you purchased the services with subsequent versions available on their website.