INTRODUCTION
Ever wondered what will happen to your virtual presence, your social media accounts, and your digital finances after your death? With the advent of technological advancements in our daily lives, the concept of a “Digital Afterlife”[1] Has emerged as a concern to individuals and society, and a challenge to legal practitioners and the government. As digitalisation seeps into our lives, we start living a double life apart from the physical one, life on online social media platforms- the profiles we create, the financial assets we possess like cryptocurrencies and bitcoins, emails, cloud storage, etc.[2] When a person dies, he leaves behind more than just physical belongings; he leaves behind his digital footprint.[3] With the penetration of the internet, have you ever wondered what legal challenges these digital footprints bring along, who possesses the right to manage these accounts, and how these digital assets can be inherited? This blog aims to answer the same.
MEANING OF DIGITAL AFTERLIFE
The digital afterlife is a concept that encompasses the continuation of the online legacy that a person leaves behind. Throughout our lives, our online presence is as spontaneous as our physical presence, which leaves behind a digital footprint that outlives us. Thus, the digital afterlife is the continuation of this digital footprint, i.e., one’s digital identity, online persona, and digital assets after death. It includes the management of one’s social media accounts, emails, and cloud storage, along with the inheritance of more impervious financial assets like digital wallets and cryptocurrencies.[4]
THE LEGAL GREY AREAS: PRIVACY, DATA OWNERSHIP, AND ESTATE MANAGEMENT
The problem is the fact that most people have not pre-planned the management of their virtual presence and assets after their death. They have not stated the inheritance of their digital assets anywhere in their will. This raises concerns about disputes over the ownership of these online accounts and digital assets, especially in cases where the terms of service of these platforms are in contradiction with inheritance laws. Also, unlike the physical assets, which are backed by the existence of clear inheritance laws, these online assets operate in a nebulous state, not backed by any neat inheritance regulations. The concerns about the privacy of the deceased for the bereaved family members are also pressing. Let us explore them one by one:
Privacy protection: The right to privacy is a fundamental right[5] Enshrined under Article 21 of the Constitution.[6] But the question is- does this right to privacy extend beyond death, and do the bereaved family members and the executors of the will get access to all those online accounts after the death of a person? Because such online social media accounts and emails are enriched with user-sensitive information, access to which can lead to serious privacy breaches. Moreover, it becomes easier for hackers to target such accounts that are lying inactive without the oversight of their legal heirs. The issue of identity theft and copyright violation becomes more prominent post-death.
The Information Technology (IT) Act, 2000,[7] It is the landmark legislation that covers the privacy concerns of individuals in India, governing the use of information by the parties. However, these laws only extend up to a lifetime, leaving a significant gap when it comes to data handling after the death of a person.[8] Also, online platforms like Facebook and Google only provide as much memorialization of such social media accounts, which is highly insufficient in covering all the data that a user leaves behind, thus creating a legally grey area.
Data Ownership: The laws related to the ownership of digital assets posthumously are not specifically laid out. Digital assets include everything from cryptocurrencies, bitcoins, and NFTs to more prosaic digital properties like music playlists, game inventories, etc. The inheritance of property after incapacitation is governed by the Indian Succession Act of 1925.[9] Although digital assets can be classified as movable property, the scope of this act is relatively restricted to the inheritance of just real tangible estate posthumously. No clear guidelines are laid down clarifying the ownership of such digital assets, provided that they are heavily encrypted and their access would require highly user-specific passwords.[10]
Estate Management: It refers to the creation of a will ensuring that an individual’s property is distributed and inherited according to their wishes post-death. In recent times, people have started pre-planning the management of their virtual assets by including them in their wills. However, the recognition of such management may not be prominently effective as they may be in contravention of the terms of service of the online platforms. Facebook and Google provide an option for the memorialization of online social media accounts as a tribute to the deceased. Some even provide the service of an “Inactive Account Manager,” allowing a third person to manage the deceased’s account. Such services, however, do not provide full access to the account’s content and may even create disputes over the ownership.[11]
LEGAL FRAMEWORKS: US, UK, INDIA
In the US, the laws related to the management of the digital afterlife are still evolving. However, various US states, including 39 as per 2018 data,[12] have implemented and adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), 2015,[13] Which aims at recognising digital assets similarly to the real and tangible estate of a person after incapacitation.[14] This act applies to a legal representative of the deceased, an agent acting under the power of attorney, a court-appointed guardian, or a trustee.
The UK lacks a legislative mandate and public awareness when it comes to managing digital assets post-death. A study revealed that 92% of the UK’s population has not documented what will happen to their accounts following their deaths, and almost 80% of them have not shared their SNS credentials with anyone else.[15]
In India, privacy is governed by the Information Technology Act of 2000, and inheritance is governed by the Indian Succession Act of 1925. The shortcomings of these acts are that the former does not define digital assets as transferable and does not cover the privacy concerns beyond the lifetime of a person, and the latter is antiquated and does not consider digital assets inheritable like the real and tangible estate of a person. The electronic will or digital assets like passwords have no legal standing under the 1925 Act. Therefore, there is no uniformity in the legal standing of digital assets.[16] Aadhar is the largest digital depository in India, where citizens link their database to the government database, and even after their deaths, they cannot opt out of Aadhar, hence making them live virtually in the Aadhar database forever.[17]
PROPOSED SOLUTIONS
As the digital footprint expands, the role of online social media platforms also becomes more relevant in the management of accounts posthumously. One of the major legal issues is the contradiction between Indian laws and the global terms of service of such online platforms.[18] The privacy policies of such platforms are uniform globally, prohibiting complete access to the contents of these accounts to the surviving family members, post-death. Many digital platforms even explicitly claim that these accounts are non-transferable and can only belong to a single individual, even if they have passed away. This brings the need for online social media platforms to use more holistic account inheritance protocols. After the confirmation of the death, a digital executor[19] Shall automatically be linked to the account of the deceased, thus giving access to their digital assets.
Apart from this, the individuals themselves need to take control by creating a digital will and assigning a digital executor who will carry out this digital will immediately after their death. This will lead to the creation of a comprehensive mechanism ensuring the smooth transfer of digital assets while also honouring the deceased’s wishes. Individuals must also maintain a centralised inventory of all key credentials for accessing the accounts, as well as the digital assets for quick legacy access.[20]
Moreover, the current legislation needs to be updated as it lacks tailored protocols for online accounts and assets. A new framework should be implemented to deal with the inheritance and management of digital legacy. Apart from this, updated cybersecurity laws are essential, which will help the legal hires protect such accounts from third-party misuse.[21]
CONCLUSION
With the expansion of technology, the role of digital platforms in shaping the management of the digital afterlife is evolving. However, India currently faces huge shortcomings in regulating the digital afterlife due to the gaps in the privacy and inheritance laws. The Indian Succession Act[22] does not address the posthumous inheritance of digital assets, and the IT Act[23] Does not cover the privacy concerns post-incapacitation. This presents the need for not only more panoramic and inclusive laws but also the need to enlist public awareness and increase cooperation between the Indian legal system and global policies of online platforms for better management of the digital afterlife.
Author(s) Name: Anushka Khard (Vivekananda Institute of Professional Studies, Delhi)
References:
[1] ‘VIRTUAL IMMORTALITY: EERIE FUTURE OF DIGITAL AFTERLIFE TECHNOLOGY’ (NDTV, 25 June 2024) <https://www.ndtv.com/world-news/virtual-immortality-eerie-future-of-digital-afterlife-technology-5959271> accessed 23 October 2024.
[2] Dr. A. Shaji George and Sabina Mamedova, ‘DIGITAL AFTERLIFE: PRESERVING ONLINE LEGACIES BEYOND DEATH’ (Partners Universal International Innovation Journal, January 2024) <https://www.researchgate.net/publication/377776089_Digital_Afterlife_Preserving_Online_Legacies_Beyond_Death> accessed 23 October 2024
[3] ‘DIGITAL FOOTPRINT: MANAGING YOUR ONLINE IDENTITY AFTER DEATH’ (Co-op Funeralcare) <https://www.coop.co.uk/funeralcare/advice/digital-footprint-managing-your-online-identity-after-death> accessed 23 October 2024
[4] Dr. Prashant Mali and Aswathy Prakash G, ‘DEATH IN THE ERA OF PERPETUAL DIGITAL AFTERLIFE: DIGITAL ASSETS, POSTHUMOUS LEGACY, OWNERSHIP AND ITS LEGAL IMPLICATIONS’ (National Law School Journal, 2020) <https://repository.nls.ac.in/nlsj/vol15/iss1/8/> accessed 23 October 2024
[5] Justice K.S. Puttaswamy (Retd) vs Union of India WP (C) 494/2012
[6] The Constitution of India, art. 21
[7] The Information Technology (IT) Act, 2000
[8] Dr. A. Shaji George and Sabina Mamedova, ‘DIGITAL AFTERLIFE: PRESERVING ONLINE LEGACIES BEYOND DEATH’ (Partners Universal International Innovation Journal, January 2024) <https://www.researchgate.net/publication/377776089_Digital_Afterlife_Preserving_Online_Legacies_Beyond_Death> accessed 23 October 2024
[9] The Indian Succession Act of 1925
[10] Ibid
[11] Ibid
[12] Dr. Prashant Mali and Aswathy Prakash G, ‘DEATH IN THE ERA OF PERPETUAL DIGITAL AFTERLIFE: DIGITAL ASSETS, POSTHUMOUS LEGACY, OWNERSHIP AND ITS LEGAL IMPLICATIONS’ (National Law School Journal, 2020) <https://repository.nls.ac.in/nlsj/vol15/iss1/8/> accessed 23 October 2024
[13] Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), 2015
[14] Ibid
[15] Ibid
[16] Ibid
[17] Ibid
[18] Umberto Bacchi, ‘WHO OWNS YOUR FACEBOOK PROFILE WHEN YOU’RE DEAD?’ (Livemint, 14 February 2019) <https://www.livemint.com/technology/tech-news/who-owns-your-facebook-profile-when-you-re-dead-1550116101037.html> accessed 23 October 2024
[19] ‘WHAT IS A DIGITAL WILL EXECUTOR?’ (Freewill, 4 January 2021) <https://www.freewill.com/learn/what-is-a-digital-executor> accessed 23 October 2024
[20] Ibid
[21] Elizabeth Sy, ‘THE REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT: HAS THE LAW CAUGHT UP WITH TECHNOLOGY?’ (Touro Law Review, 2016)
<https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2742&context=lawreview> accessed 23 October 2024
[22] Indian Succession Act 1925, s 5
[23] Information technology Act 2000, s 2(1)(r)
