Who Inherits Your Likes?

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The publication of this comment is part of a cross-posting agreement between Medialaws and IPilogue (IP Osgoode Law School blog):http://www.iposgoode.ca

Our myriad of online accounts for social media and other cloud services will all persist after our deaths. Until recently, not much thought was given to managing these digital assets after we pass.

Estate planning is something most people generally think about as little as possible. Physical assets are often unbequeathed, and sometimes require complex and extensive litigation to determine who inherits what. Many of us plan even less for what will happen to our digital assets. Some commentators have suggested dealing with digital inheritance simply by providing login information to executors. However this may run afoul of many end user agreements and terms of use, which prohibit sharing of login information. Many other people will make no estate plans at all, leaving these accounts to go dark, or require legal action by survivors for access. Some technology companies, however, are now developing services and policies to deal with this very issue.

Service Provider Policies

In early April, Google launched a service to help users decide what will happen to their digital assets when they die. Named the “Inactive Account Manager,” the service allows users to name a beneficiary for their accounts, or have their account data deleted. The service is triggered upon an account becoming inactive for a period of time defined by the user, who will also receive a notification before the period lapses. The announcement on Google’s policy blog suggests the purpose is to plan for one’s “digital afterlife,” and to protect the privacy and security of a user’s information when they die. This follows the implementation of similar policies by both Twitter and Facebook.

Twitter and Facebook’s systems operate through the reporting of deceased users. Facebook allows for memorialization or removal of a deceased individual’s account, while Twitter deactivates these accounts.  Neither service allows for the accounts to be passed on to surviving friends or family; this is where Google’s service stands out. Unlike Facebook and Twitter, Google implicitly acknowledges the value in these digital assets, and provides for the ability to transfer those assets of value to others. This new feature covers accounts for Google’s social media services like Google+ Profiles, Picasa Albums and YouTube, and can also apply to Google Drive cloud storage and Gmail email accounts.

Discussion

From a broader perspective, this move by Google suggests that many online accounts are not merely for users to consume services, but these accounts develop into actual assets unto themselves. As these various online assets continue to be developed and increase in value, ownership and division of these assets may present serious legal questions. As Google’s new service is enabling the inheritance of digital assets (thereby implicitly recognizing the value in them), a number of questions are raised about novel forms of property and what is included in the bundle of rights associated with them. There has been much discussion about who owns the data created in online services, but what about access to those accounts? Are social media accounts property? If so, who owns access to them? Are the accounts or access to them alienable, and if so in what circumstances? What about extending recognition of these accounts or access to them as property to other areas of law? If these digital assets represent significant value, could they also be subject to matrimonial property division, or other claims of unjust enrichment? These will all be questions that are likely to be answered in the coming years.

Some commentators have suggested that legislatures need to lead the way, develop laws governing inheritance of digital assets, and provisions to avoid executors from committing crimes by using log-in credentials left to them.  This issue, however, has yet to receive much attention in Canada, and it seems that politicians have not yet been urged to address it. Only time will tell if governments will step in to legislate inheritance of digital assets as they have done with physical assets, or if they will leave it to a patchwork of inconsistent policies enacted on the whim of individual service providers.

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