You may already have a will that spells out what happens to your physical assets when you die – but what happens to your social media accounts and other digital information?

Hazy rules and complex legal requirements have made getting a clear answer difficult, but that finally looks set to change after participants at a recent Meeting of Attorneys-General committed to work towards nationally consistent rules about the handling of deceased persons’ social media accounts and other digital records.

“Most people go online to work, to socialise and for entertainment,” NSW Attorney General Mark Speakman said as the initiative was announced, “but few of us consider what happens to our digital assets once we are gone or are no longer able to make decisions.”

The lack of consistent rules leaves executors of estates navigating a raft of different policies maintained by social media companies.

Facebook, for example, allows the appointment of a legacy contact to look after a memorialised account or lets account holders’ accounts be permanently deleted, while Twitter says it will “work with a person authorised to act on behalf of” the user or estate.

Google, by contrast, manages the issue through its optional Inactive Account Manager feature, but for users that did not activate that feature it promises only to “work with immediate family members and representatives to close the account of a deceased person where appropriate.”

Content from a deceased user’s account may be provided “in certain circumstances”, the company’s guidelines say, adding that “in all of these cases, our primary responsibility is to keep people’s information secure, safe, and private…. Any decision to satisfy a request about a deceased user will be made only after a careful review.”

Set to take place between now and October, a targeted consultation process will develop consistent rules about how accounts can be accessed – and by whom – if the account holder dies or becomes incapacitated.

National guidelines would simplify the process, presumably providing a consistent set of practices by which legal representatives of an estate could access a deceased person’s data, take over, or delete their social media and other accounts.

Years in the making

The transitory nature of digital content – often spread across social media, email, cloud data services, financial accounts, and physical storage devices that may or may not be encrypted – has made its regulation extremely subjective.

“Digital assets are now significant for most people and need to be considered in the event of incapacity or death,” Bartier Berry Lawyers partner Gerard Basha writes, citing “important legal reasons why representatives need timely access to digital assets and information about those assets” including properly carrying out their legal and fiduciary duties; ensuring the prevention of financial loss; and to reduce the risk of identity fraud.

The NSW Law Reform Commission (NSW LRC) began exploring the issue in 2018 and, after a period of public consultation related to its consultation paper, published a final report on the matter in December 2019.

“We see no reason to adopt a different philosophy in relation to digital assets and records than to other types of assets and records,” the NSW LRC concluded. “The practical access issues might be different, but the approach should be the same…. Where possible, the user’s wishes concerning the management of their digital records would be given full effect.”

That could prove harder than it sounds: the NSW LRC also published survey results that found 83 per cent of respondents have never spoken with friends or family about what they want to happen to online accounts and profiles if they die.

In such situations, the report recommended use of a formal scheme that would allow an “authorised person” – determined by a “statutory hierarchy” that first and foremost would give access rights to someone nominated in the deceased’s will.

With just 7 per cent of respondents to the NSW LRC survey saying they had specified their wishes for digital content in their wills, however, most accounts would have no explicitly nominated authorised person.

In this case, the scheme would give custodians 30 days to authorise access to someone “who is able to prove their authority”.

Yet this would be “only for the purpose of administering the user’s estate or managing their affairs… and would forbid them from improperly disclosing information they have obtained in accessing the digital records.”

Consensus among national Attorneys General could see a formal scheme introduced in the near future – and it will be none too soon, given the broad calls for clarity in this area.

“This is a complex area of law requiring great sensitivity,” Speakman said, “to ensure any scheme strikes the right balance between access and privacy.”