Analysis of the NSW Law Reform Commission’s inquiry into digital assets as existing succession law fails to address the distinction between legal ownership and practical access in digital environments.
Governments can be quite slow to provide regulations for new technologies. In most cases, although you own a photograph posted online, the service provider owns the access and sets the rules for who may access its service and how it may be done.
Interestingly, whilst we all die, our online presence can exist indefinitely
The New South Wales Law Reform Commission will investigate whether new laws are needed to provide certainty as to who can access data after death. It will be the first Australian jurisdiction to do so.
In announcing this investigation, the Attorney General highlighted that little thought is given to what happens to our digital assets once we’ve gone or lose the capacity to make decisions about them.
As we have discussed before, Wills are governed by state legislation, and digital assets are global, so any change in succession law will vastly broaden its scope.
Google lets you use a setting called Inactive Account Manager to decide what happens to your data and when your account is treated as inactive. No one ever really dies; they stop using their Google account.
Facebook gives you options for what you want to happen to your account when you die — you can select an ‘inheritor’ (a sort of digital executor) for your Facebook profile, to accept new friend requests, update the profile and cover photo, and write memorial messages.
A Canadian family struggled to obtain their deceased husband and father’s account details from Apple. The Couple owned an iPad and an Apple computer. When the Husband died, his wife knew the iPad’s login code, but didn’t know the Apple ID password
We have posted before about the need to protect your online or digital assets, not just your social media accounts, but your email addresses, cloud, and online financial details, and any hardware (laptop, desktop, hard drives) protected by passwords.
Just as it is prudent (and I would suggest necessary) to have a valid and up-to-date Will, you should have a digital inventory listing all your relevant usernames, passwords, and secret questions, to enable easy access to your personal and financial information.
If you are incapacitated (which is why a power of attorney is important), your appointed Attorney can control and manage your digital assets.
Until governments provide clear guidelines that allow executors to log in to accounts to access the digital assets of a Will maker, it might be wise to include a clause in your Will giving that power to your executor – and then write down your passwords and store them separately in a safe place.