Australia: Death and social media account access

Last Updated: 4 March 2015
Article by Mark Fatharly

Online Platforms

Globally there are billions of email and social media accounts across Facebook, LinkedIn, Twitter, Instagram, Gmail, Yahoo!, Hotmail and numerous other platforms. An ABC news report of 6 January 2015, stated that some estimates suggest that up to 30 million of the 1.3 billion Facebook users are actually dead.

Accessing Accounts

Access to accounts of deceased loved ones is an increasingly important and sensitive issue for families, but the realities of life and the law are taking time to catch up to the technology and usage of social media, with numerous reported battles between families and the corporate technology giants seeking access to the accounts of their deceased loved ones. Disputes can also occur between the families and the partner of the deceased about who should have control or access.

The important lesson from this is to consider the issues as part of estate planning and attempt to identify and plan how online content should be dealt with after your death to the extent possible.

Efforts to get around problems of family having access after the death of a loved one have included insertion of clauses into wills providing for the executor to have specified authority to access social media accounts, seeking court orders for access against the service provider, and changes to the law in some jurisdictions.

However, the following issues arise:

  • Each service provider's terms of service differ in relation to account access after the user has died, regardless of an executor having legal authority to manage the estate.
  • Access to those accounts would not be difficult if the deceased had left the account logon details and password for their executor and explained how they wanted their online content dealt with after death.
  • The law in each country, and often between states within the United States, differ. In Delaware, for example, the Fiduciary Access to Digital Assets and Digital Accounts Act has been passed permitting a person acting in the equivalent of a guardianship or administration or other fiduciary role to access digital data of a person's assets placed in a Delaware located trust, with numerous other US states considering similar legislation. While 13 other states have considered enacting a similar law, the majority have not so far.

Facebook's "Legacy Contact"

On 12 February 2015, after nearly a decade of taking the position merely to delete or essentially freeze the account of a deceased person, Facebook changed its user Security settings and policy to allow account holders to specify either that they want their account deleted after death or to name a "Legacy Contact" who has authority to manage the page content after they die to the extent of authority provided to them.

However, that person will only be able to make a final post, update the profile, reply to friend requests and archive photos and posts, but not be allowed access to private messages. If no Legacy Contact is specified, Facebook will simply freeze the account as previously. The Legacy Contact may also be provided authority by the account holder to download an archive of the posts, photos and profile shared on Facebook. Accounts will then have the word "Remembering" before the account holder's name to memorialise them with the frozen account page.

At present Legacy Contacts are only being added in the United States with intention to expand to other countries. One issue arising is the need to update the named Legacy Contact after relationship breakdowns or inevitably there will be a dispute with an estate executor or new partner after death over that authority.

Yahoo!, Google and Hotmail

While Facebook's position has softened, the approach of some other providers has not. Yahoo's policy remains that at the time or registration, all account holders agree to their terms which specify that neither the account nor any of the content are transferable, even when you die. Yahoo will not provide access to the account or emails but permit an account to be closed or suspended and content permanently deleted.

Google permits account closure and in limited cases to obtain content from an account, their primary responsibility being to keep user information secure, safe and private.

Microsoft on the other hand is willing to release all emails and attachments across their Outlook, Hotmail and other email accounts to the next of kin or executor.

The Last Tweets, Posts and Pics

Twitter, LinkedIn and Instagram have policies of deactivating the account of a deceased person. Twitter permits the executor or certain family members to request an account be deactivated. Instagram and LinkedIn will as a matter of policy remove the deceased's account once notified.

Other Digital Content

These issues are merely the tip of the digital iceberg. Beyond this are complex issues relating to rights in a range of potentially very valuable digital assets and their taxation such as:

  • Websites, blogs and domain names.
  • Copyright in photos, musical, digital artworks and other works posted online.
  • Monetised YouTube videos with significant popularity.
  • Avatars in online gaming which can have a bitcoin or monetary value.

There are also the often unanticipated consequences such as the fact that music and videos downloaded to a mobile phone, computer or iPad are typically only a non-assignable end user licence to use them for personal purposes such that the content cannot be transferred, and having an executor access iTunes, for example, may well breach the end user licence of itself. This can be complicated by cloud based storage access and terms.

The Courts are only seeing the first elements of these issues around the world. Over time those issues will inevitably increase with population growth, wider internet access globally and generations who have grown up with the technology.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mark Fatharly
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