18 Dec 2017

There is no doubt that in the internet era we all engage and devote significant time to our online presence for personal use, study and in the workplace. In doing so, most people gradually acquire a broad range of digital assets and may not recognise the significance of this new category of personal property. Rather than just hardware such as computers, smartphones, tablets and other digital devices, digital assets also include all information and data stored online or in the cloud. What some people don’t realise is that all online accounts including social media, online banking or shopping accounts, blogs and email accounts are actually digital assets too. If you have personal or business domain names, websites and other intellectual property such as copyrighted material, trademarks and coding, this also needs to be considered part of your digital assets.

It is commonly said that ’the internet is forever’ and it is important to think about what will happen to your digital assets after your death and put a plan in place for your ‘digital estate’. This may involve sharing your passwords and login details with a trusted person or providing a record of this information to your lawyer to be included in your Will.

It is critical that you consider the different types of digital assets you have and how you would like them to be dealt with after your death. With Facebook for example, you may give a trusted person your passwords to allow them full access to your account, otherwise you can change your settings to opt to have a trusted person or ‘legacy contact’ gain limited access which allows them to memorialise your profile, creating what has been dubbed a ‘digital shrine’ in your memory. Alternatively, you can choose to have Facebook delete your account if they are made aware of your death. Google takes a different approach and has an ‘Inactive Account Manager’ setting which alerts a trusted person of your inactivity after a certain time and allows them to share your information or delete it. This applies to Gmail and YouTube, but other social media accounts have different policies which can be difficult for loved ones to follow.

However, the digital assets of your business may need to be dealt with differently and access to the social media accounts, websites and online data storage should be transferred to a surviving business partner or trusted person. It is vital to have a plan in place so that your business colleagues can continue to run the business in your absence. This is particularly important if your digital assets generate income, have high monetary value or are essential to the operation of the business.

It is a good idea to make a digital estate plan which lists your digital assets, including all corresponding passwords and account details, and what you want to happen to each asset. Whether your assets need to be transferred, memorialised or deleted, you need to ensure that you communicate this plan to a trusted person and that the information is accessible but also securely stored with your lawyer, in a safety deposit box or in an online storage service such as Everplans.com, but remember that these tend to require more passwords.

As this is a relatively new issue, Australian laws have not been tested on this issue yet so there is no relevant legislation or case law to provide guidance. However, you can advise your lawyer that you would like to include a plan for your digital assets in your Will. You can appoint the Executor of your Will or another person you trust to carry out your intentions for your digital assets, along with the rest of your estate. However, since this is new territory for the law, this may not be enforceable and your wishes may be subject to the terms and policies that relate to your online accounts, social media profiles and other digital assets.

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This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact HHG Legal Group on 1800 609 945 (Free call).

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