Social media and wills
The following article was drafted in partnership with Paul Motion of bto solictors and appeared in both The Scotsman and Daily Record newspapers. It is an example of the ongoing work of the Society to promote the work of solicitors to the public. If you have any comments, please contact Suzy Powell or Valerie McEwan in the Society's Communications team.
Digital Afterlife - Social Media and Death
In the autumn of 2013, photos which others might have considered very private started to appear on the Facebook page of a friend who had found she was dying of pancreatic cancer. As her health failed, rapidly and unfairly for one so fit, she and her husband decided to renew their vows. I was struck by photos they posted on her Facebook page of her now gaunt face being fussed over and made up, her hair being washed and tended. After her death, as well as many messages of condolence appearing her husband used her Facebook page to organise a playlist for the funeral reception.
I was surprised to find last week that the Facebook page is still up. People who are fundraising for cancer research have been posting details of events. The family has obviously made a conscious decision to keep the page active. This started me thinking about social media and what happens on death. Who has the right to the accounts? What happens to the photos and memories? Social media is a sort of online diary, now an integral part of the lives of many people: a way of projecting personality, keeping in touch, expressing views, sharing experiences good or bad. If we want our social media to be dealt with in a particular way after we depart, is there anything we can do whilst we are still alive?
Social media is still new. It is no surprise to find that the law of wills and succession hasn't been one of the drivers of change. As ever, America is making the first moves. Nebraska, Oklahoma and Idaho have brought in laws giving executors the right to control digital assets and social media accounts after a person's death. Indiana, Connecticut and Rhode Island have laws dealing only with mail and digital files which could be extended to social media.
Facebook has a policy whereby bereaved family members can choose to delete an account permanently or convert the account into a Memorial Profile. Before making any changes, Facebook requires proof that the user has died. A profile undergoes several changes when it is "Memorialised". Facebook removes sensitive information like contact information and addresses. Facebook does not delete inactive accounts without notification: depending upon the user's privacy settings, as I found with my friend's account, people can still search and visit the profile and leave comments.
Google has introduced the inelegantly named "Inactive Account Manager" to tell Google what to do with your Gmail messages and data from other Google services if your account becomes inactive. For example, you can choose to have your data deleted after a set period of inactivity. Or you can select "Trusted Contacts" to receive data from a selection of services such as Drive, Gmail and YouTube.
The idea of empowering someone to be your "Social Media Executor" isn't as far fetched as you might think. The US Government already provides guidance and even a template for a "Social Media Will". The Deadsocial website goes further. It lets you choose a Social Media Executor and prepare pre-programme messages to be released to your friends and loved ones after you die.
Pulling together all the current advice I've been able to find, these are the sort of preparations you should think about:
- Agree with someone you trust and who is IT-literate that they will be your Social Media Executor, in charge of all your "digital assets" after your death.
- Say in your will that a copy of your death certificate must be given to your Social Media Executor, in case they need to prove they are acting on your behalf (eg to close your Twitter account, to Memorialise your Facebook account).
- Check and note all of your privacy settings and terms and conditions for your social networking websites.
- Create a list of your digital assets and digital accounts. Much easier said than done: do you know everything on your laptop, phone or hardrive, in iCloud? Can you name all the accounts and subscriptions you have, as well as all the logon details?
- Give your Social Media Executor the list, log on details, user names and passwords. It's safest not to list all the passwords on the same page as all your account details.
- State clearly in your social media will what you would like to happen to each of your online accounts (eg continue but managed by a friend, memorialised, closed down).
- Last but most important, your traditional will must be linked to your social media will somehow, so all your executors know what is to happen to your digital assets.
Finally, remember this is Scotland. Most advice on the internet is American. Get a Scottish solicitor to check what you are doing.
Paul Motion is a partner and solictor advocate with bto solictors, Edinburgh, who has specialised in internet law for almost 20 years. email@example.com; Twitter @21Rettie. This article isn't legal advice.