(Warwick-Ching, 2019)
Introduction
As our lives become increasingly digital, our identities also have a growing online presence. From social media, email, cloud storage, and even e-commerce platforms, our digital assets continue to grow every day. digital assets are not just a part of our daily lives, but it also holds significant value. However, little attention has been paid to what happens to these digital assets after our death and how surviving family members should handle these digital legacies.
In fact, digital legacies can be complicated for surviving family members to access unless specified in a will. This lack of planning can lead to a host of legal and ethical issues. For example, the question is whether the privacy of the deceased should be protected or whether the surviving family members have the right to access the deceased’s digital accounts and obtain necessary information. In this blog, we will discuss what digital legacy means and why it is essential, as well as explore in detail how current laws address the issue and how individuals should prepare. As you can see, digital legacy is an emerging concept with modern technological evolution, and the legal and ethical debate about how to deal with it will continue.
By exploring this topic, we can understand new aspects of legacy management in the digital age and prepare ourselves and our families for the challenges we may face in the future.
What is Digital legacy?
We are surrounded by our assets in digital form, including our photos, entertainment, and essential documents. Digital assets have experienced explosive growth in recent years, and as of 2021, the global market is already worth about $2 billion (Kubera, n.d.). And it will continue to grow over the next five years to $32.4 trillion by 2027 (Kubera, n.d.). When we die, these assets become a digital legacy. They can be treated as a legacy by the surviving family members. In general, a digital legacy is any asset in digital form that an individual generated or acquired on the Internet during their lifetime (The Investopedia team, 2023). This includes social media accounts, emails, photos and videos, website content, and more. In addition, digital legacy contains assets that can only be accessed and used in a digital environment, such as e-books, music files, video game accounts, and documents and databases. New digital assets in recent years have also included elements such as cryptocurrencies, crypto assets, and digital currencies (The Investopedia team, 2023).
Digital legacy differs from physical legacy in that access and ownership rights can raise complex legal issues. For example, many online services and platforms have strict policies regarding handling account information after a user’s death, and access to the deceased’s account by the surviving family members may be prohibited by the terms of the service provider. This could result in valuable records and important information left by the deceased in digital form being invisible to surviving family members.
Digital legacy Laws and Policies Around the World
Laws and policies regarding digital legacy vary widely from country to country. Each country’s legal system adopts its approach to dealing with digital legacy, which is influenced by cultural, social, and technological factors. Let us compare two representative countries.
United States of America
The United States has adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which is defined as “a law that grants fiduciaries, such as personal representatives or trustees, the right to access digital assets. as personal representatives or trustees, the authority to manage and access digital assets after a person’s death or incapacity” (Miller, 2023). In the U.S., 45 states out of 50 have adopted the RUFADAA (Nathan, n.d.) The RUFADAA is a law that authorizes designated fiduciaries to manage and access digital assets after a person’s death or incapacity to manage them. Under this law, access to digital assets is determined by the terms and conditions of each service unless prior permission is granted or a court appointment is made (Miller, 2023). Thus, in the United States, a balance is struck between the protection of the deceased’s privacy and the survivor’s right to access.
European Union (EU)
On the other hand, the EU adopted the General Data Protection Regulation (GDPR) in 2018, as the need for privacy protection has increased with the development of the Internet (Wolford, 2024). Considered the world’s strictest privacy and security law, the GDPR aims to strengthen the protection and privacy of personal data in the EU (Wolford, 2024). The regulation aims to give individuals control over their data and protect them from unauthorized use of their data. In the unlikely event of a violation of the GDPR, up to 20 million euros (32 million Australian dollars, assuming 1.5 Australian dollars per euro) or 4% of global revenue can be imposed (Wolford, 2024).
Comparing the two countries and coalitions, the GDPR is a broad norm of data protection and privacy protection. At the same time, the RUFADAA is a specific law dealing with access to digital assets. In other words, the GDPR focuses on the protection of personal data, and the RUFADAA provides the legal framework for digital assets and their management. That means that laws and policies regarding digital legacy vary widely from country to country and region to region.
Facebook ruling in Germany
In 2012, a 15-year-old girl from Berlin, Germany, was run over by a train and died (Connolly, 2017). Her parents then sought access to her Facebook account to learn whether her death was an accident or suicide. The thing is that social media platforms belong to the companies that created them and have almost absolute power over how they operate (Suzor, 2019). This means that each platform has a clause in its terms of service that lays out the ground rules. Initially, Facebook denied access to the account based on its privacy policy, to which the parents sued. In 2018, the German Supreme Court ultimately stated that online data should be treated like private diaries and letters and passed on to heirs (BBC, 2018). In other words, it ruled that her parents had the right to access the account.
At the heart of this case is the question of how digital accounts and their contents should be treated after the deceased’s death. While traditional estate law has primarily covered physical property and paper documents, digital content has increased due to global digitization, and these laws need to be updated to accommodate modern digital legacy. The decision of the German Federal Court of Justice represents a step toward a new legal framework in which digital accounts should also be treated as legacy, but this will require further legal reform to adapt to the digital age.
Attention should be paid to the privacy rights of the deceased if their living is not clear. German law states that personal privacy should be respected even after death. However, in this case, the deceased’s right to access was given priority because the deceased’s wishes were not clear. This brings us to the primary issue of the balance between the scope of privacy protection and the rights of the bereaved family.
At the same time, it also brings up the issue of third-party privacy. Allowing access to an account may violate the privacy of other third parties communicating with the deceased. In the German case, the privacy of friends who were chatting with her would be violated by granting access to a relative. From the above, it is necessary to enact legislation on how far the right of access should be included in the right of access of the surviving relatives and how the data of third parties should be protected.
Precautions and plans that individuals should take
Rather than relying on the policies of governments and coalitions, let us consider what we as individuals can do. First of all, it is essential to have a better understanding of digital assets and legacy. Understanding what digital assets include and whether they are legally inheritable is the first step we should take. Next, we need to consider how to store passwords and access information securely and how to share it with people we trust. However, the balance between privacy and security is a personal choice. Finally, while technological advances may make wills outdated, creating a digital will as a single statement of intent is effective.
What surviving family members to do about them
In addition to our digital legacy, we can also assume the position of a surviving spouse. Anecdotally important, it is essential to respect the privacy of the deceased. Surviving family members should access only the information they need and take care to find a balance with the deceased’s privacy. Access to the deceased’s digital assets is highly dependent on the service provider’s policies, and there may be cases where it is beyond the control of the surviving family members. Nevertheless, it is essential to have knowledge and interest regarding digital legacy.
Future perspective for Digital legacy Management
Future Challenges
Digital legacy management will continue to present many challenges and possibilities in the future due to the evolution of technology and the complexity of legal and ethical issues. Digital legacy laws vary widely from country to country, and the lack of international standards is problematic. In fact, the United States and the EU have different objectives for digital legacy legislation. In addition, the digital divide requires that laws be tailored to each country and region. From a privacy perspective, taking the privacy of third parties and maintaining the balance between protecting the privacy of the deceased and the right of access of the surviving family members remains a significant challenge.
Future Possibilities
Increased awareness of the importance of digital legacies around the world will create a culture in which individuals are more proactive in managing their digital legacies. As a result, the widespread use of digital wills will help smooth the way for surviving family members to resolve access issues without having to fight in court. At the same time, applying AI and other digital technologies to managing digital legacies will improve security and increase legacy management automation.
Conclusion
The management of our digital legacy is of such importance that it cannot be ignored today. Our digital assets will remain after we are gone, requiring proper management and planning. Our approach to digital legacy must strike a balance between respecting the surviving family’s rights and the deceased’s privacy. For the law to keep pace with today’s digital reality, it must be flexible enough to accommodate evolving technology and have an international framework. It also underscores the importance of individuals being aware of their digital legacy and leaving appropriate instructions during their lifetime.
Clearer and more comprehensive international guidelines for digital legacy management must be developed. This will ensure consistency across different countries’ laws and platforms and enable surviving family members to properly handle the digital legacy of the deceased. Technology companies are also responsible for providing better tools and options for users to manage their digital legacy.
In summary, the issue of digital legacy depends on how individual awareness and the legal and ethical framework of society evolve. With proper education and legal protection provided, we can minimize the difficulties faced by survivors while respecting the deceased. The future of legacy management in the digital age is an important issue for all of us. It will no doubt continue to be addressed.
References
BBC. (2018). Facebook ruling: German court grants parents rights to dead daughter’s account. BBC. Retrieved April 12, 2024. https://www.bbc.com/news/world-europe-44804599#
Connolly. K. (2017). Parents lose appeal over access to dead girl’s Facebook account. The Guardian. https://www.theguardian.com/technology/2017/may/31/parents-lose-appeal-access-dead-girl-facebook-account-berlin
How to Protect Your Digital Assets After You Die. (n.d.). Www.kubera.com. https://www.kubera.com/blog/106-how-to-protect-your-digital-assets-after-you-die
Hub, L. M. (2022, May 17). 5 Reasons You Need a Digital Asset Manager | Lariat Marketing Hub.Www.marketinghub.com. https://www.marketinghub.com/5-reasons-you-need-a-digital-assemanager/
Miller, K. (2023, August 29). RUFADAA Explained | The Law Office of Raymond E. Brown. The Law Office of Raymond E. Brown, LLC – Estate Planning. https://raymondbrownlaw.com/rufadaa-explained/#:~:text=RUFADAA%20is%20a%20law%20that
Nathan, H. (n.d.) . ESTATE PLANNING LAW REPORT: June 2023: How Will the Revised Uniform Fiduciary Access to Digital Assets Act Apply To Your Estate?. Deconcini Mcdonald Yetwin & Lacy, P.C. https://www.deconcinimcdonald.com/estate-planning-law-report-june-2023how-will-the-revised-uniform-fiduciary-access-to-digital-assets-act-apply-to-your-estate/#:~:text=Forty%2Dfive%20states%20in%20the,Assets%20Act%20(the%20RUFADAA).
Suzor, N. (2019). ‘Who Makes the Rules?’. In Lawless: the secret rules that govern our lives. Cambridge, UK: Cambridge University Press. pp. 10-24.
The Investopedia team. (2023). Digital Asset: Meaning, Types, and Importance. Investopedia. https://www.investopedia.com/terms/d/digital-asset-framework.asp
Warwick-Ching, L. (2019, November 22). From Facebook and iTunes to cryptocurrencies — what happens to your digital assets when you die? Financial Times. https://www.ft.com/content/8ed79406-06f3-11ea-9afa-d9e2401fa7ca
Wolford, B. (2024). What Is GDPR, the EU’s New Data Protection Law? GDPR.eu. https://gdpr.eu/what-is-gdpr/
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