Pittwater Life January 2019 Issue

Business Life: Law
Business Life
Your digital assets: who
has access after death?
As we commence 2019
it is assumed that most
readers are digitally connected.
If not part of the 2.2
billion people currently active
on Facebook, then you might
be part of the 170 million-plus
group of users on Spotify.
Similarly, if you are not digitally
on these platforms, then you
are quite likely to be one of the
3 billion-plus people who have a
personal email account. The fact
is that most people now have at
least some items and communications
stored digitally, either
on a tangible electronic device
(such as a laptop or phone) or
on a third party’s server. This
might include for example,
emails, online bank accounts,
social media profiles and photographs.
Whatever the case, this
type of digital footprint means
that you have what are often
referred to as ‘digital assets’.
The question of the definition
of ‘digital assets’ and the laws
that affect access to a person’s
social media accounts and other
digital assets after they die or
become incapacitated became
the basis of a referral by the
New South Wales Attorney
General Mark Speakman to the
New South Wales Law Reform
Commission early last year.
The Attorney said: “In today’s
hyper-connected world, an
unprecedented amount of work
and socialising occurs online, yet
data held in a computer. There is
no additional requirement of an
intention to commit another offence
and no defence of ‘lawful
excuse’, so that the scope of this
offence is quite wide.
n Privacy law: Australian privacy
law does not comprehensively
protect the personal information
contained in digital assets. The
laws generally regulate the handling
of personal and/or health
information by public sector
agencies, not individuals or corporations,
and some laws do not
extend protection to information
of deceased persons.
n Property law: Property rights,
such as the right to use an asset,
to exclude others from using
it, and to transfer it to another
person, may exist in digital assets.
However, these rights may
be allocated to service providers
under the service agreement and
therefore, a digital asset may not
constitute a person’s ‘property’.
n Copyright law: The Commonwealth
Copyright Act 1968
recognises copyright interests
in unpublished works, photographs,
sound recordings and
film recordings, and this interest
lasts for 70 years after the creator’s
death. However, service
agreements often restrict the
intellectual property rights of
users, which can also affect the
entitlements of the user’s successors.
n Succession law: NSW succesfew
of us consider what happens
to our digital assets once we’re
gone or are no longer able to
make decisions.
“This is leading to confusion
and complexity as family,
friends and lawyers are left to
untangle digital asset ownership
issues, applying laws that were
developed long before the arrival
of email, blogs, social media and
cryptocurrency.”
The review is considering
relevant New South Wales, Commonwealth
and international
laws, including those relating
to intellectual property, privacy,
contract, crime, estate administration,
wills, succession and
assisted decision making. It is
also scrutinising the policies and
terms of service agreements
of social media companies and
other digital service providers.
“Some social networking
sites allow for an account to be
memorialised or handed over
to an administrator after death,
while others simply close the
account,” the Attorney said. “The
Law Reform Commission will
also look at whether additional
privacy protections are needed in
situations where a person hasn’t
made arrangements for anyone
to take control of their social
media or access their private
emails.”
At present there is no law in
Australia that directly addresses
the access of trustees or family
members to a person’s digital
assets upon death or incapacity;
Laws which may be considered
in this context include:
n Contract law: Service agreements
often contain access
restrictions and prohibitions
on password sharing which
can impede family members
or trustees from accessing a
person’s digital assets. These
agreements may be enforceable
under ordinary principles of
contract law, even if a user did
not read them or have knowledge
of their terms.
n Private international law:
The proper or governing law of
service agreements is determined
according to the principles
of private international
law. If the proper law is that of a
state without a statutory access
scheme, family members and
trustees may be prevented from
accessing digital assets.
n Criminal law: At the Commonwealth
level and in NSW,
the criminal law prohibits ‘unauthorised
access’ to restricted
with Jennifer Harris
54 JANUARY 2019
The Local Voice Since 1991