Our lives are increasingly dependent on digital services such as online banking, internet shopping and social media. However, when it comes to digital assets we might not own what we think we do…
What are digital assets?
In the Isle of Man (as in the UK), there is no legislation defining what digital assets are or setting out how they should be accessed or dealt with on death. It is widely accepted that a digital asset is something stored in a binary format that comes with a right of use and includes e-mail accounts, social media accounts, subscription services, online banking, online payment accounts, digital currency platforms, shopping accounts, smartphone and app data and domain names and websites. However, as technology develops so too the definition evolves.
It is important to understand that many digital assets are not owned but leased. For example, social media accounts are often operated under a licence which is not transferable on death and does not form part of an estate. Similarly, some social network sites own any photos or other content you may upload.
What happens to digital assets on death or mental incapacity?
When someone dies, their personal representatives are responsible for collecting in and administering their estate, but, in order to do that, they need to know what assets an individual has and how to access them. Digital assets are no exception and, whilst the potential difficulty in dealing with digital assets is a relatively new phenomenon, it is becoming more and more common in this rapidly evolving technological era and so heightens the need to leave clear and comprehensive instructions to those dealing with such assets following your death.
Similar thought should be given to your digital assets during your lifetime and who you would want to have access to your online profile in the event that you become mentally and/or physically incapacitated. Without clear directions and permission to access accounts, decisions about what happens to personal information are made by the service provider, so personal data may then become permanently inaccessible.
Whilst an online footprint can have financial value, it is often the loss of sentimental or personal items such as photographs which can cause loved ones the most anguish. As making photograph albums and letter writing decline in favour of electronic storage solutions such as the cloud, it is increasingly important to consider how best to deal with such intangible property in the event of your death or incapacity.
What can businesses and individuals do?
Businesses should adopt a comprehensive digital recovery system and individuals should regularly back up their digital assets.
Read the terms and conditions of accounts before signing up as they are likely to govern what happens to them in the event of the user’s incapacity or death
Where terms and conditions allow for a nominated user to manage an account, take advantage of this and remember to update their details as necessary.
Include a digital assets clause in your will and consider appointing a digital executor.
Create a digital inventory as part of the will making process and keep it updated as required.
A word of warning…
Even if attorneys or personal representatives have been given the power to deal with a digital asset and are aware of usernames and passwords, they should not access the digital assets without first checking the terms of service and/or without sending a copy of the enduring power of attorney or grant of representation to the online service provider. Failure to do so may be an offence under the Computer Security Act 1992 which provides that a person is guilty of an offence if:
they cause a computer to perform any function with intent to secure access to any program or data held in any computer;
the access they intend to secure is unauthorised, and
they know at the time when they cause the computer to perform the function that that is the case.
This is a complex and constantly evolving area and it is prudent to consider your digital assets and how you might wish them to be dealt with should you no longer be capable of managing them yourself. It is important to regularly review all aspects of your succession plans to ensure they reflect your current wishes, your current assets and the latest technological developments.
For assistance with succession planning or preparing your will, please don’t hesitate to contact us.
Long & Humphrey, Advocates and Notaries Public, The Old Courthouse, Athol Street, Douglas, Isle of Man, IM1 1LD
In addition to private client advice, Long & Humphrey offers services across a range of legal specialisms including: Corporate & Commercial, Employment, Employment-based and Points Based System (PBS) Immigration, Insolvency, Licensing, Dispute Resolution, Public law (including Doleance / Judicial Review) and Property.
(Long & Humphrey is the trading name of Long & Humphrey Advocates Limited, registered in the Isle of Man under Company Registration Number: 131896C)