Facebook

How digital assets are dealt with on your death

In the digital world we live in, the majority of our time is spent online, so we build up a substantial base of assets that exist online or in the “cloud”. These assets include:

  • Email accounts
  • Cloud bases storage systems like DropBox, Google Drive, OneDrive and Apple iCloud
  • Cryptocurrency wallets
  • Social media accounts (like FaceBook, Instagram, LinkedIn, TikTok… and the stupid SnapChat
  • Streaming services like Netflix, Prime Video, Paramount Plus and Disney
  • Domain names, websites and blogs… and even gaming accounts
  • Photos/videos and music libraries
  • other intellectual property

The problem with each of these things is that there is no single way to transfer or deal with them on your death, in your Will or otherwise.

The Terms of Services of social media accounts don’t usually allow transfer of ownership but often do have an in memoriam type mode that can be put in place through the platforms on someone’s death but they often need to be pre-arranged by the deceased before their death (for example setting a ‘legacy contact’ or equivalent).

Many, such as the streaming services, operate on a personal license basis and thus do not allow transfers of accounts, so more of a practical matter intaking control of them (login and password) rather than transferring ownership in a legal sense.

Another problem is that many of the organisations that own and control these platforms are in different countries that may not recognise an Australian grant of probate.

Wishes in relation to digital assets can be expressed in a Will in much the same way as other tangible assets like houses and cars, but consideration needs to be given to the relevant terms of use and licensing agreements and the practical matters involved. Often the wish is to have accounts closed or deleted.

One major practical step to take control of these digital assets that executors and administrators should consider is not cancelling the deceased persons mobile phone as this is often used to get reset codes and other authentications.

FURTHER INFORMATION

For further information in relation to Wills and estate planning, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au.

Who owns the content you post on social media?

With the recent resurgence of the popularity of  FaceApp on social media feeds and considering the Facebook-Cambridge Analytica scandal, it is timely to consider some of the concerns being raised over data security and privacy in relation to the use of common smartphone applications.

Most social media apps, including Facebook, Instagram, SnapChat and Twitter, require users to agree to an extremely broad set of Terms and Conditions of Use that allow them access to your data.

This data, which can be used and sold to third parties, is in reality the price for your use of the otherwise “free” app. As it’s often said, “If you’re not paying for it, you’re not the customer; you’re actually the product being sold.”

That said, what is the legal effect of the Terms of Service that we have each agreed to when using social media Apps and who owns the content you post on social media?

  • FaceApp’s Terms can be found here
  • Snapchat’s Terms can be found here
  • Twitter’s Terms can be found here
  • Facebook’s Terms can be found here and includes:

“…when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as service providers that support our service or other Facebook Products you use…”

  • Instagram’s Terms can be found here (Note – Instagram is one of Facebook’s Products).

They are all quite similar in effect as regards the ownership and use of your content – although generally you continue to own your content, they are able to use it as and when they see fit, forever, for free.

Did you know that you can request a copy of the data that Facebook has and it can be downloaded as a .zip file? To access the download your information tool, click here. You will probably be surprised at the depth of information that is held about you

Some people are shocked to find out that it has access to things like all the contacts on their phone to a record of messages sent or received, payment details and location information… it can be quite unnerving!

Reading the T&Cs is so boring… but an agreement is an agreement and you are agreeing to their Terms of Service when you use the App so you can’t complain. What you may not know is that each App will usually have its own privacy and data related settings which can be adjusted modify the type and amount of information obtained and stored (and seen by others) so you can modify them to help protect your own content.

You have to expect however that with any social type of App, there always be a level of information kept about you, sometimes for good reasons (eg, to feed you more content you may be interested in) but also sometimes for bad. It is up to you to decide how much data you want kept or shared and how that affects your user experience

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal.

For further information in relation to terms and conditions, consumer rights or any business or commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice.

Please contact McKillop Legal to discuss your needs. Stay up to date – LinkedIn Facebook Twitter