Death in Cyberspace could have been taken directly from a Flash Gordon comic strip: Flash Gordon in combat with Ming the Merciless, the evil ruler of the planet Mongo.
It’s a bit more serious than that but, nonetheless, it makes for an interesting story.
Digital death is becoming an expanding area of law that is attracting considerable comment and interest from a plethora of parties. Much of this interest has stemmed from the media’s capitalising on the frenzy surrounding social media sites (such as Facebook) and the deaths of account holders. Parents, on the one hand, are demanding access to their deceased child’s account while the social networks argue the issue of privacy and the Terms and Conditions agreed at the time of opening an account.
Some progress has been made, with Facebook implementing its “memorialising” feature, allowing friends and families to request that a decedent’s account become effectively frozen whilst still providing access by family and friends.
Yet this amenity fails to resolve more substantive issues created by a digital passing, such as who can dictate the fate of a loved one’s account, over what time period should a memorialised presence be maintained and whether memorialisation is what the decedent would truly have wanted.
A death in cyberspace is a novel issue for many lawyers and presents some interesting challenges that society as a whole hasn’t fully come to grips with. It’s a quiet revolution that is rapidly coming to the probate and estate planning world.
Aside from social media accounts there are many other digital assets that are creating equally difficult issues.
Take for example your website. Is it hosted in the UK, in an Asian or European country, or perhaps in the USA? And what about your email accounts? Where are they held? In the event you become permanently disabled or you die, which country’s property laws apply?
And then there are issues relating to online payment accounts, virtual currencies and reward cards. Online payment mechanisms such as e-Bay, PayPal and Amazon will usually have traditional bank accounts linked to them, so it might be unlikely that cash balances will exist in the online accounts. However, this will definitely not be the case in every situation, requiring attorneys and executors to thoroughly check the online accounts for pending refunds and credits.
The situation with online accounts can be made even more difficult if the email address of the account holder is unknown. Often with no physical address and communication being made only by email (often to an enquiries@ address), dealing with these entities is generally more difficult than dealing with high street banks.
Additionally, with the increasing numbers of online-only banks beginning to emerge, attorneys’ and executors’ ability to continue to manage such accounts digitally may will depend on the terms and conditions of the bank.
Reward cards are a common inclusion in most people’s wallets and will include those from supermarkets, fuel companies, airlines and hotels. Whether or not the value of these schemes can be used by an attorney on behalf of an adult, or transferred after death, depends on the organisation administering the scheme.
Some of the big supermarkets provide for rewards to be transferrable on death, but other organisations – such as airlines and hotel groups – state that loyalty points that are unused at the time of death will be cancelled, together with membership of the scheme.
As the digital asset stakes in the cyberworld continue to rise, the challenge of finding a standard dispositional protocol for these assets may face competing power extremes. On one side of this continuum we have traditional property law, often adequately covered in probate. On the other side, however, we have corporate policy, manifested typically as a User Agreement or Terms of Service.
Contrary to what these extremes might suggest in terms of the best solutions to the issues raised by digital death, viable compromise solutions do not yet exist between these two legal extremes. One way forward would be to find a mid-continuum solution lying somewhere between probate law and corporate contractual policy that would serve the greatest number of societal interests.
Dealing with digital assets under a power of attorney or a Will can present challenges and will be an area of the law that attracts a lot of media attention.
Even though many digital assets may have more of an emotional or sentimental significance rather than financial value, it is an area of law that is beginning to raise new challenges for legal advisers and probate lawyers.