Social media has infiltrated literally every sector of our lives. All the milestones are documented on our profiles – birthdays, engagements, weddings, the time you saw the Eiffel Tower. However, there is uncertainty surrounding another significant but unavoidable event – death. You may have seen the social media profile of someone recently deceased transition into a shrine or memorial, or you may have seen that it has simply gone untouched. Although it may seem morbid, accounting for your social media after death is necessary. To plan for life after your departure comprehensively, you must ask what you would want to happen to your profiles. Further, it’s wise to decide whether you want your profiles to remain or cease.
Leaving a profile open for public comment
We’ve seen an outpouring of public sympathy and messages of support via social media after death, and people’s well-wishes don’t go unheeded. But with every gracious comment, there can be a negative one. Social media means that people of differing opinions and trolls can have their say – and trolls don’t tend to make exceptions for anyone. Other than having these posts taken down by the social media platform, there wouldn’t be much else you could do legally, as defamation claims cannot be lodged on behalf of a deceased person.
Right of access
Beyond yourself, have you considered what your loved ones would like you to do with their profile after their death? It’s not really a thought any of us entertain whilst scrolling on our News Feeds, but people are updating their wills to reflect what course of action they would like taken with their social media accounts. More to the point, who should have the right to access, delete or close the deceased’s accounts? Would it be the power of attorney (if it has been nominated), or the next of kin? Generally speaking, no one should be dealing with any of the deceased’s assets until probate is obtained and the estate is properly administered pursuant to the will.
So what happens to the content contained in a user profile after death?
One of our lawyers, Damin Murdock, says that each account provider is different. Further, it will depend on the terms and conditions of use.
“Generally speaking the user will retain ownership of the intellectual property and grant a licence to the outlet to use and transfer that information either perpetually (forever) or for a period of time.”
“For instance, a Facebook user owns all intellectual property rights posted by that user in accordance with Facebook’s Statement of Rights and Responsibilities. Nevertheless, the user grants Facebook a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any intellectual property until the user deletes it or closes the account. However, any information which the user has shared with friends will continue to be licensed to Facebook.”
Check the policy of your account provider
Murdock said that most social and digital platforms have policies for when a user dies.
“Facebook will memorialise a deceased person’s profile. They require the name of the person, the link to the persons page, confirmation of your relationship with the deceased, and proof of death (generally a link to an obituary or news article). Anyone that knows the person can make the request such as a friend, coworker, classmate. Once the deceased profile has been memorialised then no new friends can be added. However, the content will remain visible to the deceased’s friends.”
Murdock said “Gmail provides for much greater sophisticated processes protecting the privacy of the deceased users communication.”
“Only in rare cases will Gmail release content to an authorised representative which involves proof of death of the deceased and proof that you are the authorised representative. Gmail will review and generally request further legal documentation such as a court order for the release of information”.
But it’s not only the deceased’s social media profiles you should think about. This is because so many other digital assets are available on mobile phones, computers, and other devices. The rise of technology means an increase in disputes related to a deceased person’s social media after death. The best way to protect your family and friends from a dispute is to plan ahead. You can do this by:
- Having a will that provides for how your digital information is to be dealt with by the executor.
- List all of your digital accounts, usernames, and passwords in your will
- Tell your spouse, friends, and family where your will is. Tell them not to do anything until the executor directs them to.
- Nominate a ‘legacy’ contact on your social media who will decide what happens to your profiles when you die.
Social media is a fantastic way to keep in touch and be connected with the online world. However, it shouldn’t be cause for dispute or anguish once you’re gone. A few simple precautions will make sure like all other aspects of your life, your online wishes after your death can be respected.