Social media has infiltrated literally every sector of a person’s life. All the milestones are there – 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 this has become a necessity and can be seen as an ‘asset’ or extension of yourself. To plan for life after your departure comprehensively, you must now ask yourself: How would I want to be remembered on social media? Would I want to be remembered this way, or would I want my profiles deleted? Further, would I be happy for my profile to just live there and be frozen in time at the point at which my social (and living) activity ceased?
Leaving the profile open for public comment
We’ve seen an outpouring of public sympathy and messages of support via social media for the dead, 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 the expert Lawyers on our platform, Damin Murdock, Principal Lawyer of MurdockCheng Legal Practice, said that each account is different and 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.”
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 and 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 that should be considered, as so much digital content and other personal assets are being stored on mobile phones, computers, and other devices. CEO and Cofounder of LawPath, Paul Lupson said the rise of technology and an increasingly mobile and connected society means an increase in disputes related the deceased social media accounts.
According to Murdock, the best way to protect yourself or loved ones from a social media dispute or uncertainty after death is to plan ahead:
- Have 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 and not to do anything until the executor directs them to do the same
- Nominate a ‘legacy’ contact on your social media who will be tasked with deciding what happens to it when you die
Social media is a fantastic way to keep in touch and be connected with the online world, but it should never be cause for heartbreak 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.
Have questions? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.