We live in a time when technology is at the heart of our existence. Social media sites such as Facebook, Twitter and Instagram dictate and capture our lives daily. We expend so much time and energy on these sites, recording our experiences and posting images, that it makes sense to leave instructions on what should happen to our digital assets after our death.
Online estate-planning facility Everplans describes digital assets as follows: “Digital property (or digital assets) can be understood as any information about you, or created by you, that exists in digital form, either online or on an electronic storage device, including the information necessary to access the digital asset. All of your digital property comprises what is known as your digital estate.”
The questions are: how do you want your online legacy to live on after you die, and what would you like to happen to your digital assets?
The way to ensure that your wishes are carried out is a social media and digital assets will, which has two parts. The first part deals with what you would like to happen to your social media legacy and content, and the second deals with data stored on cloud servers and on your hardware.
In South African law, there is no inherent right to privacy after your death. However, barring compelling and unusual circumstances, or unless a court order is obtained, it is the policy of most social media sites and other online service providers not to grant another person access to your account or profile, or to provide another person with the content contained in your account or profile, after your death.
If you do not want your online legacy to live on, and you don’t want your digital content to be shared with anyone after your death, it may tempting not to record these wishes in a social media and digital assets will. It is nevertheless advisable to draft such a will, to ensure that your wishes are adhered to and that your personal data is not disclosed.
Depending on the type of social media platforms and online services you use, there are different options at the disposal of your executor or family members. Some of these are:
• Facebook allows your account to be “memorialised”. This, in essence, means that your Facebook page will remain active for friends and family to visit and post on. The word “Remembering” will appear before your name. The page will be managed by your legacy contact, whom you nominate via a setting on Facebook. Your legacy contact cannot change any posts, but can write new posts on your profile and change your profile picture.
The alternative option is for your Facebook account to be closed and deleted. This can be done on request by a family member, after proof has been provided to Facebook.
• Instagram, which is owned by Facebook, also allows for either memorialisation or the closure of your account.
• Twitter does not allow memorialisation, but will suspend your account if it has been inactive for six months, or will close your account when requested to do so by a family member after it has been provided with certain documents.
• If you have a Yahoo! email account, the only option is for a termination request to be sent to Yahoo!
• If you have Gmail (or another Google-based account), there are two options:
– The Inactive Account Manager, whereby, after a period of inactivity, your account will be deleted, and the data can be downloaded by a pre-selected trusted contact; or
– Your account can be closed on request by a family member.
• LinkedIn allows only for your account to be closed and your profile to be removed. Your death can be reported by a family member or a colleague who identifies your profile to LinkedIn.
It is clear from the above that the options with regard to your continuing legacy are limited, and the possibility of your family accessing your data is very unlikely, but you should exercise your rights in this regard and stipulate what should happen to your accounts and data.
If, on the other hand, you want your legacy to continue and your digital executor to be able to access and download your data, you need to nominate your digital executor as your legacy contact and provide him or her with the login details for the sites or locations where your data is stored. This can be done in your social media and digital assets will, which will ensure that your data is preserved so that it can be treasured by future generations.
Here is some advice when drafting your social media will:
• Identify someone whom you trust to be your digital executor;
• Stipulate in your will or letter of wishes that your digital executor must be provided with a copy of your death certificate, because it will be required to perform most actions; and
• Leave your digital executor a list of all the websites, along with your usernames and passwords, that you want your executor to access. Remember that these details are highly confidential, so this document should be stored in your safe or in a reputable digital vault with high security standards.
Your online legacy and digital assets may continue to exist long after you die. Set aside some time and give this issue the thought it deserves. You will end up saving your ones a lot of time and effort if you address these issues now.
Kezia Talbot and Remay de Kock are legal advisers at BDO Wealth Advisers.