Terms of Service and Deceased User’s Account

When a user dies, who owns the contents of that user's account?

In Ajemian v. Yahoo Inc. (May 7, 2013), a Massachusetts court considered this question. Two brothers, who administered their brother John's estate, brought a lawsuit against Yahoo for access to email messages of their deceased brother, and a declaration that the email account was property of John's estate. The court considered the Yahoo Terms of Service, which included this clause: "You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted."

The court looked at the central question of whether these terms - in particular, this "No Right of Survivorship and Non-Transferability" clause described above - was reasonably communicated to the user. The terms were amended before the time of death but the evidence was unclear on whether the deceased user had assented to this particular amendment. Because of the weak evidence on this point, the court decided that Yahoo could not rely on the forum selection clause which would have deflected the case to California.

The court took the view that the deceased user was a Massachusetts resident and courts in that state had a strong interest in the outcome of the case as it related to the assets of a deceased resident, as opposed to the nature of Yahoo's services. The ultimate decision was remanded to the lower court, but we can take away a few important lessons:

1. The method of implementing Terms of Use and (just as important) amendments to those terms should be carefully reviewed by any Canadian company conducting business online. This includes everything from an email service like Yahoo, to cloud-computing service providers, online retailers, ebook sellers and software vendors.
2. Corporate accounts may not impacted by the death of a user, but anyone making consumer sales should review their online terms to address survivorship issues. And there are many cases where even a "corporate" user is signing up as an individual, without any clarity on what happens to that account as an "asset" of the business after death.

Get advice from our licensing and internet law experts in this complex area.

Related Reading: Is There Life After Death for Your Digital Assets?

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