Originally published on the BBC’s Rip Off Britain website October 2021
In our new series on Rip Off Britain which aired on Monday 4th October 2021 we heard from viewers who were desperate to access photos, videos and other memories stored digitally on smartphones or in online accounts previously owned by their deceased loved ones. To help others avoid a similar situation, solicitor Gary Rycroft has the following advice:
There are several different types of digital assets which all need to be dealt with slightly differently.
Firstly, there are financial digital assets such as online banking and investments, crypto-currencies, online gambling accounts, online payment platforms, loyalty cards and of course NFT’s.
For sure we own these financial assets in law, but it may be problematic locating evidence of that, particularly when someone dies. What we want to avoid is looking for a needle in a digital haystack. Contrast the world of paper statements and certificates with the online “de-materialised” world. It is no longer the case of saying to your loved ones, ‘when I die everything you need is in the sideboard’. In the real, physical world, we need to be able to find and trace what a person owns in the digital world. One way to do this is to make a ‘Digital Directory’, which is a list on paper of what and where your digital assets are.
Secondly, there are sentimental digital assets such as photographs and music. In law, the copyright of photographs is presumed to be with the person who took them, unless there is a legal agreement otherwise (for instance a photographer working under contract). If you share your photographs on a social media platform you still own the copyright and do not give that up to the online publisher. However, the right for your family to carry on viewing them after your death is less straight forward because there may be a subscription payable to a platform, which if not paid (because you have died) means the content is taken down.
Music which is downloaded or streamed is likely to be enjoyed under a kind of licence to listen for the benefit of the purchaser, but which crucially is not transferable to a third party. This is totally different from buying a vinyl record or CD, which is a physical tangible asset which you can sell, gift or leave to a beneficiary in your will. Another good reason to get on board the vinyl revival!
I would recommend backing up or printing off everything that is precious to you in terms of photographs and other images.
Thirdly, there are what I would call intellectual digital assets such as websites and blogs. Nowadays many of us are in effect ‘self-publishing’ online. Again, whilst the legal ownership and copyright will remain with the author (unless written under contract for a third party) if this content has financial or sentimental value, it will need thought as to how it may be traced on death and who should it be passed on to. Again, think about it and give clear instruction in your will. Also, something of no apparent value now, may have significant value in the future. Imagine if Sam Pepys had written a blog!
Fourthly there are digital assets of a social nature. Many of us have a social media of choice, maybe more than one. It is a place where we curate our lives and increasingly it is a place where after death we are grieved for and memorialised. Just like it is in life, social media in death can be a mine field. Some social media platforms allow accounts to be left in stasis or closed down. But the key thing is who should make that decision. Facebook will allow you to nominate a ‘Legacy Contact’ to have that power and control when you die, or you may nominate a ‘social media executor’ in a will.
Access to digital devices such a phones and tablets post death has led to litigation. Privacy and data laws make it hard for ‘Big Tech’ companies to allow automatic access to people such as surviving partners or parents of a deceased child who may think they have that legal right. In fact, they do not have that automatic right, that is unless express permission has been in life or under a will. Alternatively, you may not want anyone to access such devices after your death, but again you should expressly say so!
Here are some links which may be useful if you request access to a deceased friend or family member’s digital accounts
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