Digital Property

What is digital property?

The question of who owns what in the digital realm is complex and is an important consideration in determining what may be bequeathed to others upon death. Digital property may include emails, photos, blogs, websites and URLs, electronic documents, content uploaded to social media accounts and so on. Ownership of digital media and the conditions of posthumous access to it will usually depend on the particularities of the Terms of Use Agreement that were entered into when the deceased signed up for the online service. Overarching contractual rights, intellectual property rights, and various forms of copyright law further complicate the situation. In addition, the digital media may be held locally on a hard-disc, or may be held remotely on a server, very often in another country and in another legal jurisdiction. So while there are well-established procedures for locating, valuing and transferring ownership of material property such a real-estate, cars and books, the task of locating, accessing and disbursing digital assets after death is often more difficult.

For example, many online services (ie. Facebook, iTunes) have Terms of Use Agreements that disallow the transferring of an individual account to another individual. The companies in question have agreed to provide a service to a named individual: the agreement and the service provided terminates upon that individual’s death. Many years of photos, videos, text files and other digital files and documents uploaded to an online service may be lost forever if posthumous access to them is not arranged and local copies are unavailable.

A common-sense solution to this problem that appears to be emerging is for individuals to provide a digital register (Flickr, PayPal, Facebook, Dropbox, etc.), and for each service, to provide the relevant username and password, along with instructions for friends, relatives and the executor of the will to execute upon one’s death. Common-sense though this may be, it is against the terms of agreement of many US service providers (Gmail, Hotmail) who prohibit the provision of one’s username and password to a third party, and forbid any individual from accessing another person’s account, deceased or not. Other online service providers, (particularly Australian ones such as iiNet and Telstra) do allow this and consider an individual who has been given the username and password to be an authorised agent of the account’s owner. Of course, for all practical purposes, the identification of the person using the username and password is impossible to verify.