Something strange in the neighbourhood

Technology evolves rapidly, but legislation governing it is unwieldy. When a person dies there are gaps in the law and ambiguity regarding their digital assets. 

Take the recent, highly publicised trend for replicating the appearance, voice or personality of someone after their death using AI, termed ‘ghostbots’. This has sparked a sudden demand for ‘do not bot me’ clauses in wills - designed expressly to prevent third parties from digitally reincarnating them – and highlighted wider concerns about how digital assets can be accessed, enjoyed and protected on death. 

Dr Marisa McVey from Queen’s University Belfast’s School of Law, who recently published a paper entitled ‘Governing Ghostbots’, said: “‘Ghostbots’ lie at the intersection of many different areas of law, such as privacy and property, and yet there remains a lack of protection for the deceased’s personality, privacy, or dignity after death. Furthermore, in the UK, privacy and data protection laws do not extend to heirs after death.”

What are digital assets?

Bizarrely, there is no definition of ‘digital assets’ in UK law. The colloquial designation is broad, ranging from financial (cryptocurrency, online banking, gambling accounts) to social (Facebook, Instagram, YouTube accounts), and intellectual (blogs, gaming avatars) to sentimental (personal emails, texts, digital photographs).

As a narrow example, this article considers the laws governing digital photographs (which could be used to create ghostbots) and the steps which can be taken to safeguard them on death. 

Current UK law

While the Data Protection Act 2018 (which includes the UK’s General Data Protection Regulation) governs rights over personal data, including rights to access and erase digital photographs, it only applies to living people and does not protect a deceased person’s data. 

Copyright law safeguards original creative works such as digital photographs. Copyright is automatically granted to the image’s creator, without formal registration requirements. On death, copyright generally persists and ownership of the copyrighted images passes to the beneficiaries; unauthorised use of copyrighted images can constitute copyright infringement. Social media users often grant platforms licences to use and display their content as outlined in their terms of service, so it is important to review these carefully.

Executors have a legal right to access, control and distribute a deceased person's estate, including digital photographs. Others, including the deceased’s friends and family, do not. Accessing or attempting to access a person’s devices and online platforms without due authority is a criminal offence under the Computer Misuse Act 1990, and online service providers often require the grant of probate before executors can access images.

Law Commission report

Because of the gaps in the law in this area, the Law Commission has just published its final report setting out its recommendations on changes to the law to ensure it better recognises and protects digital assets. It also recommends that the government creates a panel of industry experts to provide guidance on technical and legal issues relating to digital assets.

Lifetime planning

Everyone should compile a comprehensive list of their digital assets, including where they are stored and any login credentials and passwords. Most terms and conditions prohibit such information being disclosed to third parties during lifetime, so details should be kept safely with clear instructions on how executors can access them on death.

Individuals should also manage social media settings. Each online platform has unique policies governing a user’s digital images after death. For instance, Facebook allows users to specify preferences – they can choose for their profile and images to be deleted, or they can appoint a ‘legacy contact’ to continue managing their profile.

All modern wills should contain broad, express powers giving executors the right to deal with the testator’s digital assets flexibly. Additionally, the testator should specify how they want their digital assets to be managed, stored, shared or deleted, with express guidance as to privacy concerns, sentimental value and any desired ongoing use.

Also, if appropriate. a testator can designate a trusted individual, familiar with technology and digital platforms, as their ‘digital executor’ with responsibility for managing their digital assets.

Currently, the legal landscape regarding digital assets is uncertain. Following the steps above should help make it easier for those left behind.

Jessica Jamieson is a partner in Cripps LLP’s Private Wealth team.