Legal

What happens to your digital accounts when you die?

A Perth internet expert says Western Australia should follow the New South Wales example and consider passing laws that will allow someone to access a person’s digital assets after they die.

Curtin University Internet Studies lecturer Tama Leaver said the NSW Law Reform Commission’s move this week to review the laws concerning digital property was a step in the right direction.

“I think it’s a fantastic idea to explore the question of digital assets and digital data posthumously in Australia in general and it’s good to see New South Wales taking the lead here,” he said.

“I think there are so many unresolved issues when it comes to information and assets in digital forms, both on social media but also on content platforms like iTunes or Amazon.

“We need some clearer answers as Australians about what can and what should happen to estates, and what rights people have when they’re managing the estates of others. It’s very timely.”

What are digital assets?

Digital assets include those that used to exist in tangible form – like books, videos and music – as well as assets that only exist digitally – like emails or social media accounts.

Dr Leaver said it was more difficult to leave digital assets to a descendant than it was to leave them physical assets.

“Once upon a time, you would have purchased these [assets] as a physical thing and therefore you owned that thing, and if you passed on you could leave it to someone else,” Dr Leaver said.

“For example, willing your library of books to someone or willing your music collection to someone.

“Unfortunately, today we tend to purchase most of these things in digital form and we usually purchase them using a contract system, which says you have the right to access this thing until you die.

“When you die, the contract ends and your right to access that disappears.”

Dr Leaver said many people did not understand the difficulties involved with accessing a loved one’s social media profiles or emails after they died.

He said a review of WA’s laws would help people to understand the value of their data and the difficulty their trustees may have in accessing it.

“You might have really important information in your Gmail accounts, you might have really important information that is the story of your life on your Facebook account,” he said.

“Most of these companies have some sort solution about what they’d do if they discover someone has passed away and most of these solutions are reasonably bad.

“Often the case is that people who are left behind want access to the full thing.

“Facebook has said they will never give you access to that because it’s a violation of the privacy agreement they had with that person when they were alive and that doesn’t change just because they’ve passed on.

“[This] understandably seems quite frustrating and I think one of the things the NSW Law Reform Commission could effectively do is give executors the rights to all digital information left behind, which I think would be quite a shift from the way the options are currently available.

“I think in many ways it would be a timely recognition that our social media data is our data.”

No easy task

Dr Leaver said the biggest challenge was to make laws to effectively protect our rights against global companies.

“These companies are usually based in the US, so if you want to take them to court they usually have a particular court delegated in their terms of use and so it does mean trying to actually action these laws could be very difficult,” he said.

“That said, there are attempts in the US to have digital state laws established and if our laws are dialogued in a similar way to those laws, then at least there would be precedent you could draw on from the US courts.

“It’s going to be a long and quite fraught process to get these laws operational, presuming they do get brought in at all.”

Dr Leaver said he hoped WA and the rest of Australia would follow NSW’s progress and pass similar laws if they proved useful.

“My hope is that we will eventually get to the point of a system where people know exactly what their rights will be, they will know exactly how things are likely to happen after someone passes away and they will hopefully have a better path to accessing and making decisions about the digital assets, both things that used to be tangible and things that weren’t, after someone passes away.”

Hear more from Dr Leaver below about the systems global companies like Facebook and Google have in place for your digital assets when you die.