Logging out

A recent survey of web users (aged 18-65) revealed that 68 per cent of respondents regularly used online social networking sites. However, only eight per cent were aware of what would happen to their online persona or digital legacy on death, and fewer than two per cent had done anything about protecting it. These results are typical of those found in other research and illustrate the widening gap between the ease of creation of online identities and lack of knowledge about the longer-term protection of our digital legacy.

This highlights the necessity for the law to keep pace with current trends. The industry and its regulators need to be aware of the pitfalls of failing to recognise the danger signs, and adopt a uniform approach in this age of digital legacy.

For most users the potential loss of our online legacy in the form of profiles or photos might cause distress, but the value is purely sentimental. However, one of the driving factors making it ever more important to resolve uncertainty is the need to address the increasing importance of the virtual goods market within cyberspace. The current worth of the US virtual goods market is expected to surpass $1bn this year and the global market is thought to be potentially five or six times as much.

We live in a disposable world, where space and waste are environmental issues. The next generation won't amass photo, CD and video collections in physical form. Already, many people carry their personal entertainment collections with them in the form of MP3 players. We may see the same transition take place in the publishing industry too. In the first case of its kind in the UK, last December a hacker was reportedly arrested for stealing player's identities, skills, weapons and virtual money in an online computer game.

In 2009, one Runescape account sold on eBay for £46,000. What makes virtual assets so unusual is that typically it is younger individuals affected, who often may not be aware of the true value of their digital legacy.

Dealing with digital media after death is still a new concept. Most internet service providers (ISPs) rely on data protection and privacy laws to prevent release of passwords or transfer of material to third parties. However, in the UK, data protection legislation only applies to living individuals. Therefore, practice varies between different organisations and tends to be dealt with on a case-by-case basis, with no uniform approach.

Under English law, copyright in emails, other writings and photos, as with other personal possessions, forms part of the estate of a deceased individual. Therefore, the ownership of this information should pass to executors and personal administrators.

However, while copyright laws may be clear, there's little use in having the right to information without the ability and the relevant passwords to access it. This is where the real problem lies.

Finding a suitable solution

Uncertainty and current ISP policies have in recent years led to the creation of various online third party providers such as Legacy Locker, Assetlock and Deathswitch who, for a fee, allow individuals to upload passwords and other personal data to their sites '“ to be passed on to beneficiaries after death.

Questions arise as to effectiveness and security of this approach and, with established laws already in existence to deal with the transfer of physical assets, is employing the services of another online organisation the best way forward?

Most people owning physical assets, such as bank accounts, investments or property, know they should make a will to deal with these on death. However, despite this, around two thirds of the adult population still don't have a will. Even when individuals have addressed this practical step, giving consideration to how the law deals with assets held in cyberspace has yet to become standard practice in the world of will drafting.

Facebook, Twitter, Google and Yahoo! '“ like it or not these names, or at least the media tools they represent, are here to stay. Such tools increasingly form part of many people's daily lives and dictate the means by which we communicate and transact with each other.

If ISPs have failed to provide a unified solution and third party companies aren't the way forward, then we must rely on the law as it stands and adapt it to meet the needs of our changing social culture. The best way to ensure wishes are respected is still to have them documented and communicated in an appropriate legal form, such as a will or Lasting Power of Attorney. We must, therefore, trust the law to protect our digital interests until cyberspace catches up.

Need for clarification

As the nature and worth of our digital assets and estates increase, at some stage there will need to be clarification of the law in relation to the valuation and taxation of such assets. In the meantime, in an ideal world ISPs and other interested parties should come together and agree a uniform approach. They should also acknowledge those areas where there is clear copyright ownership and retained value by their users, rather than attempt to avoid the issue by including clauses in their standard terms that, if tested, are likely to fail.

The most practical step ISPs could take would be for them to do more to encourage users to make their wishes, relating to access and transferability of assets, known from the outset, and encourage individuals to seek specific legal advice where significant digital assets are involved. All legal practitioners should make themselves more aware of the issues surrounding individual digital legacies.

However, given the average age of the individuals involved, many practitioners may not see these clients (other than perhaps through their parents) until later on in life. ISPs, therefore, have an important role to play in the education process of the digital legacy generation that they've helped to create.