Our digital afterlife

Facebook has rolled out a new feature allowing users the chance to have more of a say in what happens to their online presence following their death. The new feature, recently introduced in the US and expected in the UK in the not too distant future, provides users with the option to either have their profile page permanently deleted when they die, or kept going by an identified other. 

By appointing a new “legacy contact”, users will be able to grant a friend or family member access to parts of their account in the event of their death. The appointed legacy contact will be able to upload profile and cover photos, manage friend requests, write a post on the deceased person’s timeline, and amend posts already published, but will not have access to the deceased’s private messages.

Facebook’s response to pressure from users, granting greater control over our online profiles, even when we are not here, demonstrates that the question of what happens to our digital estate when we die is increasingly on our minds.

The digital world today

The internet is now not something used only by younger generations but by all ages as the digital world continues to grow apace. In 2013 the Office of National Statistics recorded that:

• 36 million (73%) of adults in Great Britain accessed the internet every day – 20 million more than in 2006.
• Access to the internet using a mobile phone more than doubled from 24% in 2010 to 53% in 2013.
• 72% of adults in the Great Britain bought goods or services online. This was up from 53% in 2008.
• 21 million households (83%) had access to the internet.

The digital world now influences almost every facet of our lives. We rely on it to communicate, socialise, shop, learn, bank, run businesses and entertain ourselves. Few of us own record collections or buy CDs; we download music instead. If we have a question, we consult Google and, chances are, the answer is there.

Business is done by email. Gone are the days of bank statements – these are accessed online. Tesco, Sainsbury’s, Asda all now deliver groceries to your door if you shop online on their websites. The digital world has even influenced our language – not so long ago words like "blogging", "tweeting" and “apps” did not exist.

Many of us have amassed a large digital estate of significant value – be that financial or sentimental. It is encouraging to see that we are beginning to recognise this and think about our digital legacies, and that digital asset providers (like Facebook) are responding to the need to address these important questions.

What are the issues?

The issues surrounding digital estates are extensive and raise a number of questions:

• Security – what if information ends up in the wrong hands?
• Privacy – social media accounts have been compared to a form of online diary, and email accounts often represent the master key for all other online assets. Should executors be able to access these accounts, or are online service providers right to operate strict policies?
• Legal – can a deceased’s executor legally access a deceased person’s digital assets when they know the password, if they do not have explicit authority to do so, or is this in contravention of the Computer Misuse Act 1990?
• Jurisdictional – different digital asset providers are subject to different laws across multiple jurisdictions. How does this fit in with our digital estate planning?

Is there anything I can do now?

Given the speed at which the digital world has evolved, there is no doubt that the law has some catching up to do. Pending any definitive guidance as to how digital assets are managed on death, there are a number of things you can do in the meantime.

• Think about the extent of your own digital estate. What digital assets do you have? Are these owned by you or by the service provider? ITunes, for example, makes it clear in its terms and conditions that when you buy a song you are being sold a licence to use the product that is personal to you and cannot be transferred to someone else. This is a live issue that affects more and more people every day, and until we are all aware of the extent of our own online worlds, we are unlikely to take action now in preparation for what will happen later.
• Different digital service and social media providers have different policies when it comes to how assets are dealt with after death. When you have an idea of the digital assets you own, familiarise yourself with the policies of the online service providers that will apply to you. How would you like these assets to be dealt with on your death?
• Can you think of someone you know and trust who is computer savvy that you might want to leave in charge of your digital estate on your death?
• Discuss your digital assets with your legal adviser and how these are to be dealt with on your death or incapacity as part of your overall estate planning when preparing your will and power of attorney.