We’ve all seen it – a family member or friend dies and then their social media profiles become shrines, or much worse, are used to post malicious statements about the deceased.

With the rise of social media in our lives, it now also means it needs consideration in death.

We’ve seen an outpour of public sympathy and messages of support via social media such as in the cases of Jill Meaher, Thomas Kelly and, more recently, Lisa Harnum.

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 would like to entertain but people are updating their wills to reflect what course of action they would like taken with their social media accounts.

And more to the point, who should have the right to access, delete or close the deceased’s accounts? 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 with a profile after death?

LawPath expert Lawyer, 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 being stored on mobile phones, computers and devices.

CEO and Cofounder of LawPath, Paul Lupson said the rise of technology and an increasingly mobile connected society means an increase in disputes related the deceased social media accounts.

“This is further exacerbated by rapidly changing and expanding law,” Lupson said.

According to Murdock, the best way to protect yourself or loved ones from a social media dispute 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;
  • Waive your right to privacy so your executor can access your accounts (if this is what you really want); and
  • Tell your spouse, friends and family where your will is and not to do anything until the executor directs them to do same.

Social media is a fantastic way to keep in touch and follow areas of interest – it should never be cause for heartbreak once you are gone. A few simple precautions will make sure like all other aspects of your life, your wishes after your death can be respected.

Dominic Woolrych

Dominic is the CEO of LawPath, dedicating his days to making legal easier, faster and more accessible to businesses. Dominic is a recognised thought-leader in Australian legal disruption, and was recognised as a winner of the 2015 Australian Legal Innovation Index.