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“What Happens to My Facebook Profile When I Die?”: Legal Issues Around Transmission of Digital Assets on Death

Part of the Human–Computer Interaction Series book series (HCIS)

Abstract

This chapter will address the social and legal problems of transmission of digital assets on death. It questions whether existing well-known systems of laws and norms for transmission of property and assets on death are fit for the purpose of bequeathing the new “digital assets”. These assets are not simple to define and combine very different categories of assets including, e.g., traditional intellectual property assets such as digitised songs, social network profiles, assets in virtual worlds or games, emails and passwords. In particular it is controversial if (some of) these assets are best viewed as “property” or “obligations”, which has substantial effect on the legal consequences. In practice, at the moment, the area is mainly controlled by privately ordered rules of contract, i.e. the terms and conditions of different service providers, rather than by the general law of property and succession. In the realm of transmission of assets on death, this is unsatisfactory as it means the “rules” vary from site to site, are unclear to users, fail to take account of stakeholder interests and may change on whim.

Other legal issues arising include where (if anywhere) digital assets are located, given that law is territorial not global; who owns and controls an asset (not always the same person); and in general, the competing interests of stakeholders including users/data subjects, their family and heirs, the platforms where digital assets are created or stored e.g. Facebook, Google, Second Life; and society.

Finally, at least in common law systems, legal regulation of transmission of digital assets on death is muddied by the fact that while IP rights uncontroversially transmit to heirs (e.g. an author’s literary estate), there is little legal recognition of privacy/reputation rights after death (e.g. in English law, the dead have no reputation and thus cannot be libelled).

The chapter will conclude by proposing some legal and regulatory solutions, and question if technical or “code” solutions such as Legacy Locker and its ilk actually solve the legal problems or just aggravate them.

Keywords

  • Service Provider
  • Personal Data
  • Supra Note
  • Virtual World
  • Court Order

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Fig. 7.1

Notes

  1. 1.

    Edwards, L. (2009). Law and the internet (3rd ed., pp. 687–690). Hart. Ch. 21.

  2. 2.

    Playing games as piecework to create commercially transferable assets (or levels of play) is often called gold-farming, and usually done by developing world players on low wages to sell to time-poor developed world players. See further Dibbell, J. (2007, June 17). The life of a Chinese Gold farmer. New York Magazine. Available at: http://www.nytimes.com/2007/06/17/magazine/17lootfarmers-t.html?_r=0.

  3. 3.

    See e.g. Castronova, E. (2001). Virtual worlds: A First-hand account of market and society on the Cyberian frontier (CESifo working paper series No. 618). Available at SSRN: http://ssrn.com/abstract=294828; Fairfield, J. (2005). Virtual property. Boston University Law Review, 85; Blazer, C. (2006). The five indicia of virtual property. Pierce Law Review, 5; Lastowka, G., & Hunter, D. (2004). The laws of the virtual worlds. California Law Review, 92, 1; Heeks, R. (2010). Understanding “gold farming” and real-money trading as the intersection of real and virtual economies. Virtual Economies, Virtual Goods and Service Delivery in Virtual Worlds, 2(4); Westbrook, T. J. (2006). Owned: Finding a place for virtual world property rights. Michigan State Law Review, 779; Vacca, R. (2008). Viewing virtual property ownership through the lens of innovation. Tennessee Law Review, 76, 33.

  4. 4.

    See e.g. “The inside story of Nabokov’s last work”, Guardian 17 November 2009 concerning the publication of a posthumous novel against Nabokov’s wishes at http://www.guardian.co.uk/books/2009/nov/17/inside-story-nabokov-last-work; see MSN News, 13 December 2012 at http://news.msn.com/pop-culture/charlotte-bronte-letters-sell-for-dollar296000-2 reporting the sale of 6 letters by Jane Austen for nearly $300,000 and the sale of a previous unpublished novel by her for $1.1m in 2011; or more generally see McCallig, D. (2013). Private but eventually public: Why copyright in unpublished works matters in the digital age. 10:1 SCRIPTed 39–56.

  5. 5.

    “Memorialisation” usually involves freezing all posts at time of death, preventing adding of any new Friends and rejecting further login attempts, but allowing existing Friends of the deceased to add comments. See e.g. Kasket, E. (2012). “Continuing bonds in the age of social networking” Bereavement Care, 31(2), 62–69; Kasket, E. (2013). Access to the digital self in life and death: Privacy in the context of posthumously persistent Facebook profiles. 10:1 SCRIPTed 7–18; or Stokes, P. (2012). Ghosts in the machine: Do the dead live on in Facebook? Philosophy and Technology, 25, 363–379. As of March 2012 it was estimated there are at least 30 million profiles on Facebook relating to dead people: Readwrite. 6 March 2012 at http://readwrite.com/2012/03/06/i_wanna_live_forever_or_how_we_die_on_social_netwo

  6. 6.

    See e.g. Facebook discovery case, below n 59; Janna Moore Morin case discussed at http://www.deathanddigitallegacy.com/2012/02/20/nebraska-is-latest-state-to-address-digital-legacy/, February 20 2012, (conflict between family and friends over whether FB page should be deleted or memorialised, see also BBC video interview with family, 31 January 2012, at http://www.bbc.co.uk/news/magazine-16801154); see generally Mazzone, J. (2012). Facebook’s afterlife. North Carolina Law Review, 90, 143.

  7. 7.

    See further Desai, D. (2008). Property, persona, and preservation. Temple Law Review, 81, 67.

  8. 8.

    See n 39 and sec. C below.

  9. 9.

    [2012] EWHC 2952 (TCC).

  10. 10.

    “In my judgment it is clear that the preponderance of authority points strongly against there being any proprietary right in the content of information, and this must apply to the content of an e-mail, although I would not go so far as to say that this is now settled law. Some of the observations that I have quoted are in terms that are less than emphatic and, of course, the two contrary views in Boardman v Phipps are entitled to significant weight.” Fairstar, para 58; see also Lord Upjohn in Boardman v Phipps [1967] 2 AC 46, at 127, 275; Lord Walker of Gestingthorpein Douglas v Hello! Ltd [2008] 1 AC 1: “That observation still holds good in that information, even if it is confidential, cannot properly be regarded as a form of property.”; Force India Formula One Team v 1 Malaysian Racing Team [2012] EWHC 616 (Ch).

  11. 11.

    Ibid para 61.

  12. 12.

    Ibid para 65.

  13. 13.

    Ibid para 66.

  14. 14.

    Ibid para 69.

  15. 15.

    See The Law Commission Working Paper No. 110, Computer Misuse, 1988; The Law Commission, Breach of Confidence, Report on a Reference Under Section 3(L)(E) of the Law Commissions Act 1965, Report No. 110.

  16. 16.

    In Re Ellsworth, No. 2005-296, 651-DE (Mich. Prob. Ct. 2005). See discussion in Baldas, T. (2005). Slain soldier’s e-mail spurs legal debate: Ownership of deceased’s messages at crux of issue. National Law Journal, 27(10), 10.

  17. 17.

    No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Any free account that has not been used for a certain period of time may be terminated and all contents therein permanently deleted in line with Yahoo!’s policy.” http://info.yahoo.com/legal/uk/yahoo/utos-173.html. The same argument has been used in the recent case of Marianne Ajemian, coadministrator& another vs. Yahoo!, Inc. 2013 WL 1866907, Mass. App. Ct., 2013., No. 12-P-178, where Yahoo! contented that the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. prohibits disclosure of the contents of the e-mail account to the administrators of John Ajemian’s estate.

  18. 18.

    See Associated Press release, 21 April 2005, at http://www.justinellsworth.net/email/ap-apr05.htm. Note there seemed to be at least initial dubiety that Yahoo! had in fact transferred all emails in the account on to the CD.

  19. 19.

    However see the Canadian case of Grigsby v Breckenridge (1867) 65 Ky. (2 Bush) 480, concerning hard copy letters, where the court declined to make an order giving physical access to letters written by the copyright holder (Breckenridge), even though it was agreed the owner of the physical letters (Grigsby, by lifetime gift), not being the rights holder, would have no right to distribute or copy the copyright information contained therein.

  20. 20.

    And, presumably the copyright. One of the difficulties of both Fairstar and Ellsworth is that the courts seem unwilling to grapple with three “things” at once; property in the “wrapper” of the communication (electronic copy of email), property in the information, and copyright in the content. One clear difference between the second and third rights is that copyright would require a degree of originality in a literary work, and be subject to limitations such as fair use/dealing and term, while “information” would have no such threshold.

  21. 21.

    Darrow, J., & Ferrera, G. (2006). Who owns a decedent’s e-mails: Inheritable probate assets or property of the network? New York University Journal of Legislation and Public Policy, 10, 281–308. Available at SSRN: http://ssrn.com/abstract=1698907

  22. 22.

    Atwater, J. (2006). Who owns email? Do you have the right to decide the disposition of your private digital life? Utah Law Review, 397, notes that Yahoo! did not appeal the order, but agreed to hand over the emails without prejudice to their position that the email account was their property (at 399).

  23. 23.

    “Even in the absence of such a statute, public policy considerations might allow a court to reach the same result, rendering boilerplate termination clauses ineffective in the face of society’s increasing dependence on electronic communication and the significant disruption that might result if heirs are denied access to accounts.” Darrow and Ferrera (supra n 23 at 308); Note Atwater’s (supra at 405) interesting suggestion that given the likely ownership of the copyright in an email by the deceased, yet the effective control by the service provider of the quasi-tangible container of the information, users should have “at least joint ownership in our email accounts during life”. He also suggests that (a) the law of intestacy should create a presumption that emails cannot be deleted for a certain period of time and (b) service providers should be compelled to give access to heirs on proof of this being the likely intention of the deceased, while (c) recommending ownership of emails not be codified but left to the market via the development of a range of different service provider terms.

  24. 24.

    Darrow and Ferrera also engage with the argument that passing property on death in emails to heirs may invade the privacy of the deceased; see further sec. F p 19 below. See also Wilkens, M. (2011). Privacy and security during life, access after death: Are they mutually exclusive? Hastings Law Journal, 62, 1037.

  25. 25.

    One of these cases might be Marianne Ajemian, coadministrator & another vs. Yahoo!, Inc. supra n 19. In this recent case the Appeals Court of Massachusetts reversed the first instance judgment. The first instance court dismissed the suit, stating that the parties’ substantive arguments (including the issue of whether contents of the e-mail account are property of the estate) should be considered by the California courts. The Appeals Court ordered further proceedings by the probate judge, where the question of ownership of emails, amongst others, will be considered and decided.

  26. 26.

    Note for example the attempt of the draft EC Data Protection Regulation to balance the newly introduced “right to be forgotten” with measures to protect the historical record and freedom of expression. See Recitals 53, 54, Art. 17, Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), COM(2012) 11 final, 2012/0011 (COD).

  27. 27.

    See Arthur, C. Bruce Willis to fight Apple over right to leave iTunes library in will. Guardian, 3 September 2012 at http://www.guardian.co.uk/film/2012/sep/03/bruce-willis-apple-itunes-library

  28. 28.

    See Arthur, C. No, Bruce Willis isn’t suing Apple over iTunes rights. Guardian, at 3 September 2012 at http://www.guardian.co.uk/technology/blog/2012/sep/03/no-apple-bruce-willis

  29. 29.

    http://www.amazon.co.uk/gp/help/customer/display.html/ref=footer_cou?ie=UTF8&nodeId=1040616

  30. 30.

    Amazon MP3 store: Terms of use, term 5.3. http://www.amazon.co.uk/gp/help/customer/display.html?nodeId=200285010&pop-up=1

  31. 31.

    See http://www.apple.com/legal/itunes/uk/terms.html#SERVICE

  32. 32.

    Connor, J. Digital life after death: The issue of planning for a person’s digital assets after death (Texas Tech School of Law legal studies research paper No. 2011-02, p. 8).

  33. 33.

    See Eastham, L. Funeral music. Society for Computers and Law blog, 10 February 2012, at http://www.scl.org/site.aspx?i=bp24899, noting that the iTunes contract’s only mention of death is in relation to exclusion of liability.

  34. 34.

    For US law see, e.g. Sherrin et al. (1987): “A will can only dispose of property, or an interest in property belonging to the testator at the time of his death, except insofar as the testator has a testamentary power of appointment over the property. Any disposition of property in which the testator has never had an interest or of property in which he had an interest at the date of his will but has since disposed of in his lifetime must fail. Therefore, any devolution of digital property in which a testator never had an interest in, or no longer has at the time of death, will not stand.” p. 364; in McKinnon, L. (2011). Planning for the succession of digital assets. Computer Law & Security Review, 27(4), 362–367, or per Darrow and Ferrera: “For the purposes of federal tax law, “[p]robate assets are those assets of the decedent, includible in the gross estate under IRC § 2033, that were held in his or her name at [the] time of death.” supra n 23 at p. 311.

  35. 35.

    Of course in reality the person who inherits the iPod may simply continue to use it and its contents. However this would probably form a breach of the terms of service of iTunes which could mean termination of the service. Eastham, supra n 30, suggests a way round this would be to leave the iPod (or other device, e.g. a Kindle) with a legacy attached sufficient to allow the legatee to re-purchase the contents.

  36. 36.

    See “Whose iTunes is it anyway?”, Balfour and Manson, Solicitors, blog at http://www.balfour-manson.co.uk/news-events/news/archive/346/whose-itunes-is-it-anyway/

  37. 37.

    Facebook’s procedures for deletion and memorialisation of deceased’s accounts were improved globally partly as a result of a general intervention by the Canadian Privacy Commissioner, adjudicating on formal complaints made: see “Facebook agrees to address Privacy Commissioner’s concerns”, 27 August 2009, at http://www.priv.gc.ca/media/nr-c/2009/nr-c_090827_e.asp. Memorialisation also involves taking the profile out of public search results and prevents further login attempts (e.g. by scammers, or someone the deceased had shared their password with).

  38. 38.

    See “We will process certain special requests for verified immediate family members, including requests to remove a loved one’s account. This will completely remove the timeline and all associated content from Facebook, so no one can view it. For all special requests, we require verification that you are an immediate family member or executor. Requests will not be processed if we are unable to verify your relationship to the deceased. Examples of documentation that we will accept include:

    The deceased’s birth certificate.

    The deceased’s death certificate.

    Proof of authority under local law that you are the lawful representative of the deceased or his/her estate.”

    See https://www.facebook.com/help/265593773453448/, checked at 28 December 2012.

    See also: “In order to protect the privacy of the deceased person, we cannot provide login information for the account. However, once it has been memorialized, we take measures to secure the account.” at https://www.facebook.com/help/359046244166395/

  39. 39.

    Facebook assert at: https://www.facebook.com/help/265593773453448/ (checked at 28 December 2012): “We will provide the estate of the deceased with a download of the account’s data if prior consent is obtained from or decreed by the deceased, or mandated by law.” See further comment by Carroll, E. What happens to your Facebook account when you die? 7 February 2012 at http://www.thedigitalbeyond.com/2012/02/what-happens-to-your-facebook-account-when-you-die/

  40. 40.

    See https://support.twitter.com/groups/33-report-abuse-or-policy-violations/topics/148-policy-information/articles/87894-how-to-contact-twitter-about-a-deceased-user

  41. 41.

    See discussion above of Yahoo!’s terms of service and the Ellsworth case.

  42. 42.

    “If an individual has passed away and you need access to the contents of his or her email account, in rare cases we may be able to provide the Gmail account content to an authorized representative of the deceased user. We extend our condolences and appreciate your patience and understanding throughout this process.” https://support.google.com/accounts/answer/2842525?hl=en&ref_topic=3075532

  43. 43.

    See https://support.google.com/accounts/answer/3036514

  44. 44.

    “Once you click the link, we’ll need to verify your identity before you download the data. You’ll need to enter in a code, which you can choose to receive via SMS or voice call. After verification, you can download the data, which will be downloaded as a separate file for each product that’s been shared with you.” Ibid.

  45. 45.

    See n 98 of Mazzone, supra n 8.8.

  46. 46.

    “All rights and title in and to the Service (including without limitation any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, “applets,” transcripts of the chat rooms, character profile information, recordings of games) are owned by Blizzard or its licensors.” See Terms of Use Agreement, last updated August 22, 2012 http://us.blizzard.com/en-us/company/legal/wow_tou.html. “Blizzard does not recognize the transfer of World of Warcraft Accounts or BNET Accounts (each an “Account”). You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt shall be null and void. Blizzard owns, has licensed, or otherwise has rights to all of the content that appears in the Game. You agree that you have no right or title in or to any such content, including without limitation the virtual goods or currency appearing or originating in the Game, or any other attributes associated with any Account. Blizzard does not recognize any purported transfers of virtual property executed outside of the Game, or the purported sale, gift or trade in the “real world” of anything that appears or originates in the Game. Accordingly, you may not sell in-game items or currency for “real” money, or exchange those items or currency for value outside of the Game.”

  47. 47.

    Second Life Terms of Service, December 15, 2010, title 7. See especially the right to retain title to all intellectual property brought into the game, the right to delete all copies of your content from the game, and most importantly, “7.6 Linden Lab owns Intellectual Property Rights in and to the Service, except all User Content”, See http://secondlife.com/corporate/tos.php?lang=en-US and commentary in Vacca supra n 5; Steinberg, A. B. (2008–2009). For sale--one level 5 barbarian for 94,800 won: The international effects of virtual property and the legality of its ownership. Georgia Journal of International and Comparative Law, 37, 381; Gong, J. (2011). Defining and Addressing virtual property in international treaties. Boston University Journal of Science & Technology Law, 17, 101.

  48. 48.

    Mazzone, supra n 8, citing Linden Lab Official: Death and Other Worries Outside Second Life. SECOND LIFE WIKI, at http://wiki.secondlife.com/wiki/Linden_Lab_Official:Death_and_other_worries_outside_Second_Life

  49. 49.

    See Holpuch, A. Instagram reassures users over terms of service after massive outcry. Guardian, 18 December 2012 at: http://www.guardian.co.uk/technology/2012/dec/18/instagram-issues-statement-terms-of-service.

  50. 50.

    Google terms of service. Last modified 1 March 2012 at: http://www.google.com/intl/en/policies/terms/. “Your content in our services. Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.” Note the YouTube terms of service modify this to require the user to grant a license to YouTube. YouTube terms of service, last modified 9 June 2010, 7.2. (The license terms are described in section 8).

  51. 51.

    The Internal Revenue Code defines the “gross estate” as “the value at the time of [decedent’s] death of all property, real or personal, tangible or intangible, wherever situated.” Darrow and Ferrera, supra n 23.

  52. 52.

    Darrow and Ferrera, supra note 23, at note 151.

  53. 53.

    See for example in the UK, the Computer Misuse Act s 1; in the US, the Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. § 2510-22.

  54. 54.

    Computer Fraud and Abuse Act, § 1030(a)(2), US Stored Communications Act (see sec B above), for more see Lamm, J. Planning ahead for access to contents of a decedent’s online accounts, blog post. February 9, 2012, at: http://www.digitalpassing.com/2012/02/09/planning-ahead-access-contents-decedent-online-accounts/, takes the view that even where an executor has the authority of the court to access the deceased’s assets, he may still not be authorised to access contrary to platform rules.

  55. 55.

    18 U.S.C. § 2510-22, see Kulesza, A. What happens to your Facebook account when you die?. February 3, 2012, at http://blogs.lawyers.com/2012/02/what-happens-to-facebook-account-when-you-die/.

  56. 56.

    See In re Request for order requiring Facebook, inc. to produce documents and things, Case No: C 12-80171 LHK (PSG), 9/20/201, and see further below at sec E.

  57. 57.

    For example, the general principle in Scotland is that the executor acquires the same title as the deceased had to ingather the entire estate including both tangible property, heritable and moveable, and debts. See e.g. Gretton GL and Steven AJM Property, Trusts and Succession (Tottel, 2009), paras 25.45ff. Note however Wilkens (supra n 26) account of US executry practice, where she claims ingathering electronic bank accounts and similar financial information is extremely difficult for executors in the US because of the privacy safeguards imposed by inter alia the Gramm-Leach-Bliley Act and the Electronic Communications Privacy Act. She points as a result to a defensive and routinised attitude by financial institutions and service providers who veer on the side of privacy for fear of regulatory breach. We return to this point when discussing post mortem privacy below at sec F.

  58. 58.

    See Succession (Scotland) Act 1964 c. 41 as amended.

  59. 59.

    Conn. Gen. Stat. § 45a-334a.

  60. 60.

    Ind. Code § 29-1-13-1.1.

  61. 61.

    Rhode Island General Laws Chapter 33-27.

  62. 62.

    “The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any micro blogging or short message service website or any e-mail service websites.“ 58 Okla. Stat. Ann. § 269.

  63. 63.

    Idaho Statutes § 15-3-715(28) and § 15-5-424(3)(z).

  64. 64.

    See “Nebraska is Latest State to Address Digital Legacy”, February 20, 2012, at http://www.deathanddigitallegacy.com/2012/02/20/nebraska-is-latest-state-to-address-digital-legacy/ or generally see Lamm, J. (2013, February 13). February 2013 List of state laws and proposals regarding fiduciary access to digital property during incapacity or after death. http://www.digitalpassing.com/2013/02/13/list-state-laws-proposals-fiduciary-access-digital-property-incapacity-death/

  65. 65.

    See e.g. Connor supra n 34.

  66. 66.

    Darrow and Ferrera supra n 23, p. 297; see section E below.

  67. 67.

    At the US Uniform Law Commission 2012 Annual Meeting in Nashville, Tennessee, July 13–19 2012, see http://uniformlaws.org/Narrative.aspx?title=QR%20Issue%2012%20%3E%20New%20Committees

  68. 68.

    See http://www.uniformlaws.org/shared/docs/Fiduciary%20Access%20to%20Digital%20Assets/2013feb7_FADA_MtgDraft_Styled.pdf

  69. 69.

    Section 2 (7) “(7) “Digital asset” means information created, generated, sent, communicated, received, or stored by electronic means on a digital service or digital device; the term includes a username, word, character, code, or contract right under the terms-of-service agreement.” and “(9) “Digital property” means the ownership and management of and rights related to a digital account and digital asset.”

  70. 70.

    Section 4 of the Draft reads “Except as a testator otherwise provided by will or until a court otherwise orders, a personal representative, acting reasonably for the benefit of the interested persons, may exercise control over the decedent’s digital property to the extent permitted under applicable law and a terms-of-service agreement.” This provision clearly favours terms of service agreements and lack clarity for personal representatives.

  71. 71.

    See generally Anton Private international law (W. Green/SULI, 3rd ed., 2011), ch 23; Clarkson and Hill (Eds.) (2002). Jaffey on the conflict of laws (2nd ed., p. 509). London: Butterworths, saying that the English courts are primarily prepared to appoint an executor as personal representative where the deceased has left property in England but may also do so if other good reasons exist e.g. testator died domiciled in England.

  72. 72.

    Ticketmaster Corp., et al. v. Tickets.com, Inc No CV 99-7654, 2000 US Dist LEXIS 12987 dt (CD Cal 27 March 2000), eBay v Bidder’s Edge Inc 100 F Supp 2d 1058 (ND Cal 2000), Intel Corp. v. Hamidi30 Cal. 4th 1342 (2003), or commentary in Lemley, M. A. (2003). Place and cyberspace. California Law Review, 91, 521. Available at SSRN: http://ssrn.com/abstract=349760

  73. 73.

    Or the equivalent in Linden Dollars, which are a tradeable currency: see discussion at http://en.wikipedia.org/wiki/Economy_of_Second_Life where the Second Life economy was valued at $567m in 2009.

  74. 74.

    See Clarkson and Hill, supra n 74.

  75. 75.

    Ibid at 519, nn 151 and 152.

  76. 76.

    Second Life, Terms of Service, last stated at December 5 2010, rule 12.2, at http://secondlife.com/corporate/tos.php#tos12

  77. 77.

    Note of course though that jurisdiction clauses can be challenged on consumer protection grounds and indeed a Second Life mandatory arbitration clause has already been struck down: see Bragg v Linden Labs 487 F. Supp. 2d 593 (E. D. Penn. 2007).

  78. 78.

    For some wonderful hypothesising as to distribution of virtual assets in community property divorces, see Richardson, S. B. (2011). Classifying virtual property in community property regimes: Are my Facebook friends considered earnings, profits, increases in value, or goodwill? Tulane Law Review, 85, 717. Note that community of property also affects division on death in some US states including California, see e.g. guidance at http://www.ca-trusts.com/intestate.html.

  79. 79.

    For example, nearly 60% of adults in England and Wales have not made a will—see Thornhill J “Die intestate and your loved ones will be left to untangle your legacy” 28 July 2012, at http://www.thisismoney.co.uk/money/pensions/article-2180242/Die-intestate-loved-ones-left-untangle-legacy.html. Note also the possible effect of the EC Regulation on Succession, n 77 infra, should the UK choose to ratify it.

  80. 80.

    EU Regulation 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession (the “Succession Regulation”): L 201/107, 27.7.2012.

  81. 81.

    Ibid, art 2 (k). Note that the UK has not yet agreed to opt in to the Regulation, which would change the law in significant ways e.g. the applicable law relating to succession would be in principle that of the country where the deceased died resident. The Regulation does contain some provisions on validity of choice of forum and law clauses entered into by the deceased, although within the limited context of choices of EU states.

  82. 82.

    Supra n 59.

  83. 83.

    18 U.S.C. § 2701.

  84. 84.

    Supra n 56, citing Theofel v. Farley-Jones, 359 F.3 d 1066, 1074 (9th Cir. 2004): “Having reviewed the papers and considered the arguments of counsel, IT IS HEREBY ORDERED that Facebook’s motion to quash is GRANTED. The case law confirms that civil subpoenas may not compel production of records from providers like Facebook. To rule otherwise would run afoul of the “specific [privacy] interests that the [SCA] seeks to protect.”

  85. 85.

    See extensive discussion of this topic in Edards, L., & Harbinja, E. (2013). Protecting post-mortem privacy: Reconsidering the privacy interests of the deceased in a digital world, Privacy Law Scholars Conference, Berkeley, USA. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2267388; Amsterdam Privacy Conference 2012, Panel on Death and Post-Mortem Privacy in the Digital Age, Oct 8 2012, Chair: Lilian Edwards, Panellists: Edina Harbinja, Anna E. Haverinen, Damien McCallig, Elaine Kasket, http://www.apc2012.org/sites/default/files/pdffiles/APC%20programme_0.pdf; and special section on post-mortem privacy in (2013) 10:1 SCRIPTed: Dedicated Section on Post-mortem Privacy which featured Edwards, L. Post-mortem privacy, editorial (pp. 1–6); Kasket supra n 7; Harbinja, E. Does the EU data protection regime protect post-mortem privacy and what could be the potential alternatives? (pp. 19–38); McCallig supra n 6; Bikker, J. Disaster victim identification in the information age: The use of personal data, post-mortem privacy and the rights of the victim’s relatives (pp. 57–76).

  86. 86.

    Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Official Journal, L 281, 0031–0050 (1995).

  87. 87.

    See Solove, D. J. (2006). A brief history of information privacy law. PROSKAUER ON PRIVACY, PLI; GWU Law School Public Law research paper No. 215. Available at SSRN: http://ssrn.com/abstract=914271

  88. 88.

    For an overview of protection of post-mortem privacy in the current and proposed EU data regimes see Harbinja supra n 88.

  89. 89.

    See Art. 4 of the Proposal for a General Data Protection Regulation, and more explicitly: revised Recital 29, Council of the European Union, Letter from the Presidency to Working Party on Data Protection and Exchange of Information, 2012/0011 (COD), Brussels, 22 June 2012, at http://amberhawk.typepad.com/files/blog_june2012_eu-council-revised-dp-position.pdf

  90. 90.

    The Art 29 Working Party, discussing the concept of personal data, agreed that in certain cases a deceased’s data could receive some kind of protection, e.g. where controller or processor may not be able to ascertain whether a person is alive or not; where data of a deceased is connected to that of a living person; where legal rules other than data protection might protect a deceased’s personal data (such as doctor-patient confidentiality). They also agreed it was open to member States to include protection of a deceased’s personal data when implementing the DPD, provided it did not conflict with other Community laws. See Art 29 DP WP, Opinion 4/2007 on the concept of personal data, 01248/07/EN WP 136, p. 22, also pp. 16, 22, 23, citing ECJ ruling in Lindquist case: C-101/2001 of 06/11/2003, § 9.

  91. 91.

    Article 28 (3) Bulgarian Personal Data Protection Act, State G8azette No. 1/4.01.2002, 70/10.08.2004, 93/19.10.2004, 43/20.05.2005, 103/23.12.2005, 30/11.04.2006. Available in English at: http://legislationline.org/topics/country/39/topic/3. Accessed 15 July 2012

  92. 92.

    Estonia, Personal Data Protection Act, RT1 I 2003, 26, 158, RT I 2004, 30, 208, available in English at: 2http://www.legaltext.ee/text/en/X70030.htm. Accessed 20 July 2012.

  93. 93.

    Ibid, Article 13(1).

  94. 94.

    Section 3, Sweden, Personal Data Protection Act (1998:204). Available in English at: http://www.sweden.gov.se/content/1/c6/01/55/42/b451922d.pdf. Accessed 30 July 2012.

  95. 95.

    Section 1 (1) (e), UK Data Protection Act 1998.

  96. 96.

    Article 29 Working Party, Opinion 4/2007 on the concept of personal data, 01248/07/EN WP 136, p 22. There is also an attached issue as to when children have capacity to be exercise data protection rights.

  97. 97.

    The principle has been revised in the UK and now only pertains to the causes for action for defamation and certain claims for bereavement. See the Law Reform (Miscellaneous Provisions) 1934 Act, Race Relations Act 1970, Sex Discrimination Act 1975, Disability Discrimination act 1995 and Administration of Justice Act 1982.

  98. 98.

    Mephisto, BVerfGE 30, 173, Federal Constitutional Court (First Division), 24 February 1971, translated by J. A. Weir: “It would be inconsistent with the constitutional mandate of the inviolability of human dignity, which underlies all basic rights, if a person could be belittled and denigrated after his death. Accordingly an individual’s death does not put an end to the state’s duty under Art. 1 I GG to protect him from assaults on his human dignity”.

  99. 99.

    Marlene Dietrich Case BGH 1 ZR 49/97, 01 December 1999, translated by Raymond Youngs.

  100. 100.

    Ibid, Judgement: “…b) The components of the right of personality which are of financial value remain after the death of the holder of the right of personality, at any rate as long as the non-material interests are still protected. The corresponding powers pass to the heir of the holder of the personality right and can be exercised by him in accordance with the express or presumed will of the deceased.”

  101. 101.

    SA Editions Plon v. Mitterand (Civ. 1, 14 December, 1999, Bull. no. 345), Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher, Translated by: Tony Weir at http://www.utexas.edu/law/academics/centers/transnational/work_new/french/case.php?id=1240

  102. 102.

    See further, Mazzone supra n 8, at 1652–1660.

  103. 103.

    See ibid at 1665–1666 on the very rigorous materials required by Gmail before they will let heirs obtain a deceased’s emails, compared to the complete lack of information given by Google (again!) re how to obtain disposition of a Blogger blog after death. Mazzone, n 8, cites LinkedIn as requiring only knowledge of a deceased’s email address to close their Linked In profile. Facebook has already had to deal with cases of hoax requests for deletion on death as a kind of “denial of service” attack: see eghttp://gizmodo.com/5973270/its-super-easy-to-lock-people-out-of-their-facebook-accounts-by-claiming-theyre-dead

  104. 104.

    See Restatement (Second) of Torts § 652I (1977); Bick, supra note 62. 163. See, e.g., Humphreys v. DeRoss, 790 A.2 d 281, 289 (Pa. 2002) (Castille, J., dissenting) (“Personal belongings, letters, mementos, family photographs and the like are all common bequests . . . .”); In re Mildrexter, 971 P.2 d 758, 759 (Kan. App. 1999); Monk v. Monk, No. CA97-04-039, 1997 WL 700061, at *1 (Ohio App. Nov.10, 1997) in ibid, p. 313.

  105. 105.

    See supra n 6.

  106. 106.

    See discussion in Human Tissue Authority, Code of Practice 2: Donation of Solid Organs for Transplantation, paras 96–100 at http://www.hta.gov.uk/legislationpoliciesandcodesofpractice/codesofpractice/code2donationoforgans.cfm?faArea1=customwidgets.content_view_1&cit_id=669. Cfin Scotland, Human Tuissue (Scotland) Act 2006 and guidance at http://www.hta.gov.uk/_db/_documents/Information_about_HT_%28Scotland%29_Act.pdf, esp. para 14.

  107. 107.

    Lessig, L. (2006). Code and other laws of cyberspace (“Code 2.0”) (2nd ed.). Basic Books.

  108. 108.

    See further Edwards, L. (2013). Anti-social networking. In I. Brown (Ed.), Research handbook on internet governance. Edward Elgar (forthcoming).

  109. 109.

    An obvious problem might be if such an election meets the formal requirements of a will to be in “writing” in most jurisdictions—and the possibility of conflict with “hard copy” wills. A truly radical solution would be to encourage users to make electronic wills (deemed formally valid) as part of the online social networking experience. (or on phones via apps, or via the digital will drafting services mentioned above.)

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Edwards, L., Harbinja, E. (2013). “What Happens to My Facebook Profile When I Die?”: Legal Issues Around Transmission of Digital Assets on Death. In: Maciel, C., Pereira, V. (eds) Digital Legacy and Interaction. Human–Computer Interaction Series. Springer, Cham. https://doi.org/10.1007/978-3-319-01631-3_7

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