Dying Digitally (Pt 3): THE LEGAL PERSPECTIVE
Anne Agi
It forms part of Estate Law
From a legal point of view, digital inheritance requires that digital data forms part of the descendant’s estate. The concept of universal succession means that heirs enter into the legal position regarding property rights of the testator by law. Such property rights as elements of the descendant’s estate may be enshrined in laws.
Veret (Rose) Shavit in in her blog, ‘Vered (Rose) Shavit’s Blog’ writes on the topic: ‘Death in the Digital Era & Life After Death on the Net: the Digital, Virtual and Online Aspects of Current Death’ and states that in Israel, the law as regards bequeathing digital assets is that:
“If it is a material digital asset, such as a hard drive, disk, disk-on-key, cassette, computer etc., it is considered the same as any other material asset and the law determines who it will go to if there is no will. Digital assets that are not material, such as articles a testator has written, programs developed, projects built on a computer, passwords and so on, are considered intellectual property and can be inherited according to a will or the law”.
(See Vered (Rose) Shavit’s Blog, Death in the Digital Era & Life After Death on the Net: the Digital, Virtual and Online Aspects of Current Death, http://
Privacy Issues
The issue of privacy is another issue that arises from bequeathing digital assets. It seems simple: parents, benefactors or heirs wanting to have access to the email account of a deceased. As they see it, they are his benefactors, his heirs. Therefore, just as they received all his material goods, so they should receive all his digital ‘goods’ – like his email account. However, the issue is not as easy as it sounds. Most digital assets are password protected and as such most internet sites are very committed to clients’ privacy – could it be that a client may not have wanted his parents to have access to his mail? Furthermore, at least two people are involved in every mail correspondence.
The case of Justin Ellsworth is a case in point. Justin, a 20-year-old Marine, was killed in Iraq on Nov. 13 2004. His grieving father’s effort to digitally preserve his sons email became a major privacy debate. John Ellsworth had pleaded with Yahoo to release his son’s private e-mails to the family. Yahoo initially denied the request, though they were eventually forced to release the details of Justin Ellsworth’s e-mail to his parents by a court order. Maybe Yahoo’s commitment to guard Justin’s privacy includes their commitment to guard his friends’ privacy as well? Vered (Rose) Shavit posits:
‘There is no doubt that the copyright of Justin’s outgoing mail belongs to Justin, and so to his parents. But what is greater – his and/or his friends’ right to privacy, or his copyright (and his parents’ right to inherit) of his outgoing mail? Incoming mail is an even more complex issue, because the copyright of those emails belong to the sender and not the receiver – Justin only received the right to read the mail, he did not receive the right from the senders to publish the mail he received or to forward it on, and therefore he cannot bequeath this right to his parents.
These are complex issues and dealing with death in the digital age will probably require us to expand our concept of privacy. Each one of us has a private life and a right to privacy even after death which websites strive to protect. The question is, whether we can realize this right when so much of our most private information is embodied in digital assets and clearly the law in this area has not yet caught up with technology.
Presently, executors are at the mercy of service providers and problems may be encountered if service providers do not recognize the consents given by the deceased in digital wills. There may also be jurisdictional issues at stake. However, for the present (or at least until other service providers think otherwise), setting out express instructions in a Will or Letter of Wishes gives the user the best chance of enabling his loved ones to inherit his personal digital effects.
Conclusion
As this trend of Digital Death becomes more popular, conferences are held round the world to discuss issues that arise. Digital Death Day is one of such conferences which have been running twice annually since May 2010 in Europe and North America. Discussions at these conferences include stimulating a reconsideration
Barrister Anne Agi writes from Abuja. You can reach her through email: anneagi@yahoo.c
