“What Happens to My Facebook Profile When I Die?”: Legal Issues Around Transmission of Digital Assets on Death

Abstract

This chapter will address the social and legal problems of transmission of digital assets on death. It questions whether existing well-known systems of laws and norms for transmission of property and assets on death are fi t for the purpose of bequeathing the new "digital assets". These assets are not simple to defi ne and combine very different categories of assets including, e.g., traditional intellectual property assets such as digitised songs, social network profi les, assets in virtual worlds or games, emails and passwords. In particular it is controversial if (some of) these assets are best viewed as "property" or "obligations", which has substantial effect on the legal consequences. In practice, at the moment, the area is mainly controlled by privately ordered rules of contract, i.e. the terms and conditions of different service providers, rather than by the general law of property and succession. In the realm of transmission of assets on death, this is unsatisfactory as it means the "rules" vary from site to site, are unclear to users, fail to take account of stakeholder interests and may change on whim.Other legal issues arising include where (if anywhere) digital assets are located, given that law is territorial not global; who owns and controls an asset (not always the same person); and in general, the competing interests of stakeholders including users/data subjects, their family and heirs, the platforms where digital assets are created or stored e.g. Facebook, Google, Second Life; and society.Finally, at least in common law systems , legal regulation of transmission of digital assets on death is muddied by the fact that while IP rights uncontroversially transmit to heirs (e.g. an author's literary estate) , there is little legal recognition of privacy/reputation rights after death (e.g. in English law, the dead have no reputation and thus cannot be libelled).

Post-mortem privacy 2.0: theory, law, and technology

“…This, however, has arguably not been translated to the online world. As shown in some of the author's earlier works, a user's rights of ownership over digital assets, nor their rights to allocate these assets after death, are routinely recognised (Edwards and Harbinja 2013b;Harbinja 2016). It can be argued that in the online world, digital assets and identities are more closely related to privacy interests than in the offline world, and thus are much more closely related to the personal and autonomy interests of the user.…”

Taboo or Not Taboo: (In)visibilities of Death, Dying and Bereavement

“…With technologies and human nature shifting in ways that are only just becoming apparent to us. Our legacies are now blended sites of on and offline identities, that come with questions of privacy, ownership and control that are continuously being redefined both socially and legally (Edwards & Harbinja, 2013). Online environments also provide digital versions of honouring the dead (Gotved, 2014) that stimulate ethical and practical questions about the nature of death and dying.…”

How do we provide the digital footprint with eternal rest? Some criteria for legislation regulating digital wills

“…The majority of a digital footprint is controlled by digital service providers via their terms of service agreements, and the policies governing the provision of most digital services generally establish the use that can be made of the records created by the activities carried on by users ( Edwards & Harbinja, 2013 ).…”

“…Additionally, recent years have seen the 77 appearance of companies offering to manage the digital ser-78 vice accounts of deceased users. Furthermore, in this scenario, 79 the doubt arises as to whether current legislation is enough to 80 provide an answer to the challenges presented by digital foot-81 prints when users die ( Edwards & Harbinja, 2013 ). Therefore,82 to provide a global and comprehensive response to the differ- Nevertheless, we cannot ignore the fact that digital foot-88 print management is still not a generalized social concern, de-89 spite the stories appearing in the media.…”