As our lives move ever more online, with many of us storing and sharing our photos and videos via social media and on our phones and tablets, it is becoming increasingly important that we consider what happens to our online data after we die. Online accounts can play home to hundreds, if not thousands, of photos, videos and messages equally as precious to the loved ones we leave behind as physical photo albums, video tapes and letters. However, gaining access to an individual’s digital assets once they have died is by no means straightforward - something which has been highlighted by Rachel Thompson’s recent and well reported case against technology giant, Apple.
The court case – Rachel Thompson vs Apple
Mrs Thompson’s partner, Matthew died suddenly in July 2015, leaving behind a daughter, Matilda, aged six at the time. To help her daughter remember her father, Mrs Thompson went to an Apple store in 2015 to request access to Matthew’s account in order to recover the thousands of photos and videos which he had taken using his iPhone. Apple maintained that user accounts are non-transferable and that rights to content terminate on the account holder’s death, unless they had made it clear how much access others should or should not have to their account. As Matthew had not made any provisions in this regard, Rachel was advised by Apple that she would need to obtain a court order before they would transfer Matthew’s account to her.
After a three-year legal battle, Mrs Thompson finally obtained a court order in May 2019, allowing her to access Matthew’s account. Mrs Thompson’s case is among the first of its kind in the UK and, after handing down the ruling, Judge Jan Luba called for a simpler way to settle such cases stating that companies should owe a “digital duty of care” to grieving families.
How different platforms handle users’ data after death
Several online account platforms appreciate the importance of the data they host and have already put in place procedures through which account holders can prepare for how their data is managed after death. That said, these procedures differ depending on the platform or company in question. For instance:
Users can choose a friend or a family member to become a “legacy contact”. This allows the “contact” to take control over some aspects of the account, including choosing whether to either have it deleted or memorialised. This means that the contact cannot read the deceased person’s messages, but they are able to change their profile photo and archive old posts and photos.
Google has an “Inactive Account Manager” function which allows a user to nominate a friend or relative to be contacted when you die. Google will contact your nominee when your account has been inactive for three months. They will receive an email, allowing them to download the data you have selected to be sent to them.
Apple only allows the transfer of an Apple Account after a grant of probate and a court order. There is no method to arrange for this before you pass away. It would be advisable to make practical arrangements in advance.
Whilst the UK courts are beginning to acknowledge the need for legislation to address the issues surrounding social media accounts and digital data after death it is important to start looking at alternatives such as “digital Wills”. By setting out instructions for the use and disclosure of personal data after death, this could potentially avoid the need to obtain court orders, particularly if the account holder has made practical arrangements in advance. This would hopefully allow grieving family members to avoid the lengthy, and often expensive, process of getting a court order - only to recover what should, by rights, be theirs already.
If you have any questions about the issues touched on in this blog, please get in touch with a member of our Private Client Team.
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