The NSW Law Reform Commission will review laws around access to a person’s social media accounts and ‘digital assets’ after they die.
The commission’s review, which will be led by retired Federal Court judge Annabelle Bennett, will consider whether the state needs legislation to regulate who can access the digital assets of a person who is deceased or is incapacitated.
“In today’s hyper-connected world, an unprecedented amount of work and socialising occurs online, yet few of us consider what happens to our digital assets once we’re gone or are no longer able to make decisions,” NSW Attorney General Mark Speakman said.
“This is leading to confusion and complexity as family, friends and lawyers are left to untangle digital asset ownership issues, applying laws that were developed long before the arrival of email, blogs, social media and cryptocurrency.”
The issue of ownership of digital assets after death touches on many areas of law, including intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted-decision making.
“When a loved one passes away, bureaucratic hurdles and legal uncertainty are the last thing families and friends feel like confronting, so we need clear and fair laws to deal with these 21st Century problems,” Speakman said.
Complicating matters further is the separate policies and terms of service agreements users sign up to when creating social media accounts.
Facebook for example allows family to ‘memorialise’ accounts of deceased relations. No one can log-in to the account – their name displayed with ‘remembering’ alongside it – but the content they shared remains visible.
To remove a dead person’s account – unless they’ve appointed a ‘legacy contact’ – relations must supply documents such as their last will and obituary.
Twitter removes deceased and incapacitated users following a similar process. In both cases it requires a relation social media savvy enough to do so.
“There’s no uniformity in the way social networking sites are addressing this issue. Some allow for an account to be memorialised or handed over to an administrator, while others will close the account,” Speakman said.
Cryptocurrencies also present a problem for the people left behind. A Bitcoin investor may not pass on their private key or their family may not even recognise one when they see it.
Executors often use tax data to locate assets, but cryptocurrency could go unnoticed.
At present, there is no law in Australia that directly addresses the access of fiduciaries or family members to a person's digital assets upon death or incapacity. However, a number of existing laws, many written before the internet, may apply.
In the United States, laws enacted by most states from 2015 give people the power to plan for the management and disposition of their digital assets in the same way as tangible property.
Under the acts, the person's instructions, either online or in a traditional estate plan, take priority over the service agreement.
Canada introduced similar laws in 2016 which have stronger rights of access for fiduciaries.
“Due to the prevalence and value of digital assets in present society, and the uncertainties within the current state of the law, legislation may be needed in NSW to address the practical difficulties in accessing the digital assets of a deceased or incapacitated person,” the commission said.
“NSW should aspire towards a clear and effective legal framework of access to digital assets that will address the current problems here, and influence change in other jurisdictions.”
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