NSW Government Set To Review Digital Assets After Death

Ever wondered what would happen to your Facebook account after you pass away? How about the music you ‘bought’ from iTunes? Would your relatives or close friends get to take possession of it or do the companies own those assets?

Digital Death

Most people only consider the distribution of physical items such as property, money and other heirlooms when writing their wills. But what if you wanted to leave your Kindle e-reader books to your niece, or pass on your cryptocurrencies to your family members?

Digital assets are content that has been digitally stored, including social media accounts, emails, online financial accounts, music and video libraries, and intellectual property.

Around 38 states in the US have a uniform code to deal with distributing digital assets. However, Australia does not currently have a system in place. Many of the relevant laws were written before email or social media existed, forcing family and friends to navigate a complex minefield of outdated laws.

While some larger sites have an existing system in place, many smaller ones do not. This could leave bereaved families with legal uncertainty regarding which assets could be retained and which ones they had no claim over.

Here are some of the likely consequences for your online accounts:

  • Facebook: Your account could be memorialised by being frozen in time or you could set up your account to delete everything, once Facebook is informed of your death. Alternatively, you could set up a legacy contact, giving them permission to post on your behalf.
  • Twitter: A ‘verified immediate family member’ can delete your account if they can provide evidence that you are deceased.
  • Snapchat: Immediate family members can request your account be deleted.
  • iTunes: The content you purchased cannot be given to other people as it has simply been ‘rented’ to you.

NSW Assets Overhaul

NSW Attorney General Mark Speakman has requested the NSW Law Reform Commission to determine which elements in existing laws need reform. Some areas of law that may require a digital overhaul include estate administration, wills, copyright, and privacy.

Furthermore, the terms and conditions agreements of social media sites has been brought into question, whereby the differing policies between different sites makes it very difficult to establish certainty.

According to a 2017 Deloitte survey, over 91% of consumers accept terms and conditions without reading them. This raises another concerning issue regarding digital ownership of content purchased by users. Although stated in the company’s legal policies, most people would probably express surprise if they found out that their digital purchases could not be passed on. This is because the music you have bought on iTunes has essentially been ‘rented’ to you rather than truly ‘owning’ it, and so therefore cannot be left to family.

The Law Reform Commission is expected to release a consultation paper to the state government by the end of June with a list of their recommendations.

Do you think our current laws are due for an overhaul? Do you have any digital assets that you are worried about? Let us know your thoughts by tagging us #lawpath or @lawpath.

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