In today’s ever expanding digital world you’d probably have to think long and hard to name someone that has absolutely no digital assets, and I’m pretty confident that many wouldn’t be able to. The first people that came to mind for me was my Mum and Dad, but then I remembered my Mum has a Facebook account and my Dad has mobile phone and sends and receives text messages.
Before you get the grey matter working on whether you could name someone, let’s have a look at how we might describe a digital asset. Now this is by no means an exhaustive list but I’ve described it below to take account of anything that exists today, whilst capturing anything that may be developed in the future. I hope your brain doesn’t suffer the same freeze mine did when I first penned it so bear with me:
‘Digital assets include files stored on digital and or electronic devices including but not limited to desktops laptops tablets peripherals storage devices mobile telephones smartphones and any similar digital device which currently exists or may exist as technology develops or such comparable items as technology develops. The term digital assets also includes but is not limited to emails received email accounts digital music digital photographs digital videos software licences social network accounts file sharing accounts financial accounts domain registrations DNS service accounts web hosting accounts tax preparation service accounts online stores affiliate programmes other online accounts and similar digital items which currently exist or may exist as technology develops or such comparable items as technology develops regardless of the ownership of the physical device upon which the digital item is stored’
Bottom line, even if you think your great Grannie is computer illiterate and there is no way she has a digital asset, if she has a mobile phone with a picture of her favourite great grandchild saved on it (hopefully you), she does.
So what’s the big deal? Well, while we’re alive absolutely nothing. If we lose our phone or laptop we can get it replaced, usually without losing the data stored ‘on it’. That’s because it probably isn’t stored on it at all, it’s stored in something we’ve all come to call the cloud. Even if we forget our usernames and passwords we can retrieve them. There is a server somewhere in a place we’ve never heard of that can be accessed by someone we’ve never met simply by telling them the name of our first pet. Easy…
What about when we’re no longer here? I want to make it clear here that I’m not going to get into what the law says in relation to minors, but you may be interested to read that last month a German Court held that a parent has no rights to their dead child’s Facebook account reuters.com/article/facebook/privacy In this article I am talking only about adults, so for the sake of clarity, anybody who is 18 and over.
As far as the law is concerned, how or whether you can pass ownership of your digital assets to a chosen beneficiary depends on the policy of the Internet Service Provider (ISP) holding your account. Have you ever bothered to read the copious pages of terms and conditions that you need to click to accept before you can open any online account? Don’t worry, you’re not alone, and it’s probably safe to assume that digital asset succession wasn’t at the top of your list of priorities when you signed up to Twitter, WhatsApp or iTunes in the first place.
It might be worth having a read of the rights and responsibilities of an account holder on death, though whilst reading don’t be surprised to find that it breaches the ISP’s policy even to share your username and password. Actually, you’ll probably also find you don’t own the account at all, and that you’re just leasing it during your lifetime.
To cut to the chase, you’ve probably guessed by now that this is an area which can be fraught with legal wrangling at a time when legal wrangling is what you need least. What you should consider is what you want to happen to your digital assets and whether you want to give anyone access to them when you meet your maker. You could include a digital assets clause in your Will, giving your Executors the discretion to decide who should benefit from them where appropriate. You can be prescriptive with things like photos or music, and you may also want to consider whether your social media accounts should be memorialised.
Whatever you decide, digital assets should be on your list of considerations when succession planning, and whilst planning, don’t forget to tell your Executors where to find your usernames and passwords!
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
Nino Cuffaro – Wills, Trust and Probate
T: 020 7183 1485