# Gray Hooper Holt LLP Solicitors

Digital Legacies

The concept of a “digital legacy” is becoming increasingly relevant in a society where we communicate with each other and manage our affairs online. A digital legacy can be divided into two areas, the deceased “digital records” and the deceased’s “digital property rights and interests”.

The most obvious example of a person’s digital record is their social media accounts. The use of social media and the significance of managing a deceased’s account has come to light in recent cases where families have struggled to close profiles or required access to information about the deceased. A case in Germany saw the parents of a 15 year old girl take Facebook to court over access to their daughter’s account, with the German Federal Court of Justice ruling that online data should be treated the same a private diaries or correspondence, which would pass onto a person’s legal heirs after death. In the UK, after someone has died, social media data instead rests with the service provider. Although steps are being taken to try and address the issue of accessing and managing an account after someone has died, such as the option to “memorialise” a Facebook page, the process of gaining access to and handling these accounts is often complicated and time consuming, with companies having different legal hoops to jump through.

Digital records can also include downloaded materials like e-books, music, films and other numerous online accounts that we use on a daily basis that often with payment details saved such as eBay, Amazon and other online shopping platforms. Whilst the former can often carry great sentimental value, the latter carry and financial element and therefore it is important that personal representatives can gain access to them. To close these accounts, similarly to with physical assets, companies will generally require an original or certified copy of the death certificate (and sometimes the Will) or a Court Order, meaning they can be left exposed to the risk of fraud until the relevant authority can be provided. Matters can be complicated even further because many of things like e-books, games and music that we download and pay for do not necessarily form part of the an estate unless they have “digital property rights and interests” associated with them. Only items with such rights and interests would fall into a person’s estate. It is a common misconception that we automatically “own” the music, e-books and films we download and pay for, but in reality it is usually the case that we only have a licence to use them during our lifetimes. This means that not only does careful consideration need to be given to how our digital records can be accessed after death, but also whether any of them carry rights and interests that can be passed under the terms of a Will.

One recommendation made by the Law Society to try and address this issue is to leave a list of accounts and passwords with a Will so that your relatives can have access. The problem with this however is that by doing so, they may find themselves in breach of the Computer Misuse Act 1990 which prohibits unauthorised access to computer material, and so family members may find that they are committing a criminal offence by accessing the online accounts of the deceased even if they have been given the password. The effect of this is that digital records can ultimately be treated the same as bank accounts or property and cannot be managed until the appropriate administrative process has been followed and authority given.

In order to make sure you are control of your digital legacy, you need make sure you have the correct guidance and take steps to ensure your personal representatives are not left in a precarious position. We can provide assistance with overall estate planning, to include your digital legacy, to ensure that the administration of your estate is handled as smoothly as possible.