Facebook is one of the most popular social media sites, boasting approximately a billion users worldwide and counting.
It seems that social media plays a very significant role in our daily lives. We can post up our daily activities, thoughts and photos for the public at large to see and keep up to date with great-aunt Marge on the other side of the world. You can actually live your life through a virtual forum. But what happens to your social networking accounts when the owner is no longer living? Who will inherit their online life?
Denying access of the deceased’s account
Eric Rash was only 15 years old when he committed suicide in his hometown of Nottaway County, Virginia in the United States. His tragic death was a big shock to everyone in his community, especially to his grieving parents. His parents had no idea that their son was planning to end his own life and asked Facebook to grant them permission to access Eric’s account in hope of finding any clues as to why their son took his own life. Facebook rejected this request due to privacy laws governing the state and country. This led to a state-wide discussion to change privacy laws to enable the parents of deceased minors to gain access to their children’s online accounts.
When 23 year old Sahar Daftary plummeted to her death after falling off the balcony of her ex-husband’s apartment in England, her parents were also denied access their deceased daughter’s Facebook account. Sahar’s parents, like Eric’s, hoped to find information on Sahar’s final days though her Facebook messages. After being denied access by Facebook, they took their request to a court where a Californian judge refused to grant their request on the basis of the country’s privacy laws. The judge upheld Sahar’s right to privacy even after her death. Although Mrs Daftary was the executor of her daughter’s will, she did not have permission to access her daughter’s Facebook account or the right to do so.
To delete or to memorialise?
A deceased Facebook user’s next of kin has two options in dealing with a deceased’s Facebook account. The account can either be deleted or be memorialised by making a request to Facebook. In order to protect the deceased person’s privacy Facebook will not grant them access to the deceased’s account.
If the account is deleted, all of the photos, videos and messages will also be deleted but under privacy laws there may be avenues for preservation in which case, a lawyer may be able to assist. Otherwise, the account can be “memorialised” through a memorialising request to Facebook. This means that:
• No one can log into the memorialised account.
• The Facebook account will remain as it was when the user died for example, additional friends cannot be added or removed, and the existing material on the page cannot be changed.
• No more posts or activities, such as birthday reminders or updates, will be shared by the deceased user.
• Only confirmed friends can access the memorialised account and leave messages on their wall.
A major problem with the above options is that the next of kin may make a choice which does not reflect the deceased’s wishes regarding their personal online account. For that reason, you should advise your next of kin or executor with your instructions on what you would like to happen with your online accounts after you die.
Ownership of online accounts
Although Facebook does not own any content covered by intellectual property rights or any photos or videos posted on your account, it may obtain a license to use any of the content as it sees fit.
The main rule is that ownership of a deceased person’s Facebook account does not automatically pass from the deceased to their family and friends after their death. This rule is not only subject to Facebook users, but extends to other social media pages such as email services and other social media networks such as Linkedin, Twitter, Instagram, Snapchat and so on.
While Facebook offers the deletion or memorialisation options for all accounts, other social media networks may not offer these options. Again, for that reason we suggest that you should record your wishes by providing your next of kin or executor with your instructions on what you would like to happen with your online accounts after you die.
How to record your wishes
One suggestion is to make a list of all your social media accounts, including all of your active:
• email accounts,
• online shopping or payment accounts, including Paypal and Ebay,
• electronic messaging services,
• professional networking sites,
• social media sites,
with your account names, details and any password. You can also provide instructions regarding your accounts so that those you trust can honour your wishes after you die. They may also have your authority to access your accounts, but only if you want them to. It is highly advisable not to put this information in your will or any other legally-binding document because eventually it may become a public record. You can leave the list and outline of your wishes with the executor of your will or with someone who you trust in order to secure your “digital assets.”
Contact a solicitor in our commercial advice team on (08) 9228 2881 or by sending an email to reception@equitaslawyers.com.au for:
• Assistance with protecting or registering your intellectual property, including patents, trademarks and or designs.
• Advice on your rights under the relevant privacy laws.
• Advice on ownership and licenses across a range of matters.
