Death and the digital afterlife

What happens to our digital footprint after death is one of the complex legal questions being examined by the NSW Law Reform Commission.

A Digital Assets Review was announced this week by NSW Attorney General Mark Speakman.

The review will examine how social media websites handle Intellectual Property after a user’s death.

"Depending on the platform provided, they all have different policies," according to Australian Communications Consumer Action Network (ACCAN) CEO, Teresa Corbin.

The commission outlined different approaches to handling the content of a deceased or incapacitated person across social media websites – some websites will allow for a memorial page to be created, whereas others will delete the account altogether.

The Digital Assets Review is "a case of making sure that we have mechanisms in place," Mrs Corbin said.

"The issue of ownership of digital assets after death involves many areas of law," according to Mr Speakman.

The announcement comes after a report Access to Digital Assets Upon Death or Incapacity, by ACCAN highlighted the areas of the law where the issue needs to be addressed, including Contract Law, Property Law and Privacy Law.

"Most online social media platforms and service providers do not have adequate procedures in place to cater for the death of a user," the report stated.

"Where arrangements are in place there is also inconsistency between the arrangements that different social media platforms and digital service providers offer upon death; the arrangements are often made on an ad-hoc basis."

President of the NSW Council for Civil Liberties Stephen Blanks said Australia seemed to be a bit behind on the issue.

Mr Blanks said there were privacy concerns without strong legislation, noting that data is valuable to companies, and referring to recent changes in European and American Internet legislation including 'the right to be forgotten".

"From a civil liberties point of view… … people should have the right to choose how their image is treated online."

"I hope that the social media companies don’t oppose that kind of legislation," Mr Blanks said.

"There’s no doubt in my mind that regulation is required."

The review will be spearheaded by Dr. Annabelle Bennett, the Chancellor of Bond University and a former Federal Court Judge.

"As a specialist in intellectual property law, she’s the ideal person to take the lead on exploring whether NSW needs new laws to regulate what happens to digital assets after we’re gone or can’t make important decisions for ourselves," Mr Speakman said.

Stakeholder submissions for the review will be opened later this month.