Digital legacies

Hologram 08 by Ian Truelove

The development of the internet has gradually shifted many aspects of modern life from the real, tangible world to a virtual, digital domain: music, films and books are stored in the cloud, social lives are conducted online and bank accounts are managed with apps. As we move towards an increasingly online existence, this raises the question of what happens to all our digital assets and personal data once we die and how these “digital legacies” can be bequeathed.

It is necessary first to identify the different elements of a digital legacy.

Digital assets

These comprise the plethora of digital products with a monetary value which are purchased or licensed by the testator. Some obvious examples include iTunes music libraries, Google movie collections, Kindle books, PlayStation downloaded games, Microsoft Office licenses and paid-for smartphone apps. Examples of less common digital assets are tradable computer game characters, domain names and Bitcoin.

Personal data

The vast troves of digital data we generate over our lives may only have financial value to advertisers, but there is often a great deal of sentimental value for relatives and friends. Photos and videos stored in the cloud (or on a locked smartphone), email and social media accounts, and diaries written in Google Drive all form key parts of an individual’s digital legacy.

Online accounts

These are web or app-based methods of managing personal affairs and monetary transactions: online bank and building society accounts, self-assessment and council tax payment services, online trading platforms and gambling sites (ie if money has been deposited in these accounts), PayPal and utility bills.

How are digital legacies dealt with?

Currently, there is limited guidance on dealing with digital legacies in the UK. The Law Society’s Wills and Inheritance Quality Scheme Protocol recommends including digital assets as part of a Personal Assets Log. The first step for a testator is to compile a list of all their digital assets, personal data and online accounts. Then they need to decide which elements they wish to pass on to beneficiaries and how certain accounts should be dealt with (eg. should a Facebook page be memorialised or deleted upon their death). Finally, they need to figure out how to transfer control or ownership; this may involve liaising with service providers or using tools such as Google’s Inactive Account Manager.

According to Geoffrey Todd, partner at Boodle Hatfield, there is not yet a huge demand for digital legacy advice from clients: “We always point out the issue of digital legacies to clients but they tend to deal with it themselves most of the time. Recently a client wanted to give us (in a sealed envelope to put with his will) details of where his assets are held together with logins and passwords for online access. This is still fairly unusual in our experience.”

Legal issues surrounding digital legacies

A key difficulty of bequeathing digital assets and access to online accounts is that any transfer of access rights generally needs to be granted by the relevant service provider. If an executor or beneficiary uses the login details of the deceased without gaining authority, they could be committing a criminal offence under the Computer Misuse Act, in addition to breaching the service provider’s terms and conditions.

Todd notes that there is a solution to this dilemma across the Atlantic: “In the US, they have legislation that makes it easier for executors to access online assets: the Fiduciary Access to Digital Assets and Digital Accounts Act.” Although there is no similar legislation in the UK, as digital legacies are becoming more common, Government will need to consult with service providers and find a way to tackle this legal lacuna.

What does the future hold?

Future technologies will raise many new questions surrounding digital legacies. One existing development which is raising the dead, quite literally, is that of necromarketing. The essential premise is that CGI or holographics recreate the likeness of a dead actor to appear in a film or a dead musician to “perform” at a concert. Rapper Tupac Shakur appeared as a life-sized hologram at Coachella 15 years after his death, and Audrey Hepburn was reanimated more than 20 years after she passed away in a chocolate advertisement. Robin Williams was so concerned about the prospect of his likeness being posthumously exploited that he took steps to prevent it happening for at least 25 years after his death. Although this phenomenon is currently largely limited to celebrities this is likely to become much more widespread.

Charlie Brooker, as part of his Black Mirror anthology of dystopian films, directed Be Right Back; the plot involves a young woman who decides to take up an offer to create an AI chatbot infused with the personality of her recently deceased boyfriend. In order to re-create his “digital personality” the chatbot developers use big data analysis and AI to scour all his social media accounts and emails, in order to build up a personality profile. Although this may seem to be in the realm of science fiction, it has already been attempted in reality with a limited degree of success and, as AI improves, it’s likely that future attempts will be more successful. So in the future one’s digital legacy may also come to encompass a digital likeness and virtual personality as standard.

Top tips for managing digital legacies

Make a list of all your digital assets and online accounts.
Record all your usernames and passwords and keep them safe.
Include a list of digital assets as part of a Personal Assets Log and keep this with your will.
Find out how to transfer your digital assets or control of online accounts – read the service providers’ Ts&Cs.
Do not attempt to log in to the accounts of a deceased unless authorised by service providers.

Internet for Lawyers Newsletter

Edited by Nick Holmes