“What Happens to My Facebook Profile When I Die?”: Legal Issues Around Transmission of Digital Assets on Death

Abstract

This chapter will address the social and legal problems of transmission of digital assets on death. It questions whether existing well-known systems of laws and norms for transmission of property and assets on death are fit for the purpose of bequeathing the new “digital assets”. These assets are not simple to define and combine very different categories of assets including, e.g., traditional intellectual property assets such as digitised songs, social network profiles, assets in virtual worlds or games, emails and passwords. In particular it is controversial if (some of) these assets are best viewed as “property” or “obligations”, which has substantial effect on the legal consequences. In practice, at the moment, the area is mainly controlled by privately ordered rules of contract, i.e. the terms and conditions of different service providers, rather than by the general law of property and succession. In the realm of transmission of assets on death, this is unsatisfactory as it means the “rules” vary from site to site, are unclear to users, fail to take account of stakeholder interests and may change on whim. Other legal issues arising include where (if anywhere) digital assets are located, given that law is territorial not global; who owns and controls an asset (not always the same person); and in general, the competing interests of stakeholders including users/data subjects, their family and heirs, the platforms where digital assets are created or stored e.g. Facebook, Google, Second Life; and society. Finally, at least in common law systems, legal regulation of transmission of digital assets on death is muddied by the fact that while IP rights uncontroversially transmit to heirs (e.g. an author’s literary estate), there is little legal recognition of privacy/reputation rights after death (e.g. in English law, the dead have no reputation and thus cannot be libelled). The chapter will conclude by proposing some legal and regulatory solutions, and question if technical or “code” solutions such as Legacy Locker and its ilk actually solve the legal problems or just aggravate them.