14 Oct 2016

Have you ever thought about what will happen to your Facebook account when you die? Chances are that you haven’t, if our own anecdotal evidence is to be believed.  In fact, most people have never turned their mind to this issue. But, when they are asked, people tend to have quite personal views on what they would like to happen.

Australian law does not yet provide specific guidance on what is to happen to these accounts in death.  The good news is that there are steps that you can take to have some control over how your social media accounts are dealt with when you do pass away.

One option is to leave a trusted person with a document setting out your account details, so that in the event of your death that person can log on as you and control your accounts (or delete them altogether).  There are some flaws with this approach.  First, people tend to change passwords regularly so the likelihood that the person will have the current details when you pass is low.  Second, giving anyone else your password is likely to be a breach of the terms and conditions that you accepted when you created the account which could mean the account is cancelled if anyone finds out.  Third, most people don’t want anyone to have full access to their accounts, which can include many years’ worth of private messages and other confidential material.

Social media platform Facebook has introduced settings to allow users to put in place a plan for their account in the event of their death.  Security settings mean Facebook users over the age of 18 can choose to name a so-called “legacy contact”, who can have limited access to the account after the death of the user.  If Facebook is made aware of a user’s death, the page is “memorialised” and the legacy contact is informed and can post on the deceased’s page, accept new friend requests and update cover and profile pictures, but cannot access messages nor delete existing content on the page.  Alternatively, a user can choose a setting which requires Facebook to delete the account altogether if it is made aware of their death.

While it is good that Facebook has introduced these measures, we find that many people are unaware of their existence.  It would be great to see Facebook do more to explain these options to its users, and to raise awareness around these issues.

Other social media platforms have their own processes, and it seems likely that they will adopt similar “nomination” settings if they receive feedback that this is what users want.  Having said that, these companies are never going to provide users with a guarantee that their accounts will stay online indefinitely – and people should be mindful of the fact that they don’t have any legal rights to access such accounts when loved ones pass away.  Media reports have demonstrated that families can be left distraught when they are denied access to social media accounts after the death of a loved one.  While in an ideal world, such companies might deal with deceased users’ accounts in consultation with their families, this is not realistic given the sheer numbers of users of their services.  So – save those precious photographs somewhere offline, make the most of your time together, and make sure that when your time comes you have taken the steps you need to in order to put your online affairs in order.

People who run Facebook pages for their businesses should keep these issues in mind when deciding how to manage those accounts.  If a business account is set up or managed by an individual person, then problems are likely to arise if that individual dies or becomes incapacitated, and they have not left readily accessible login information for their colleagues to access the page.  Failure to plan for this can mean a business finds itself unable to access its own critical social media accounts.  Businesses should think ahead, and make sure they have a plan in place which enables their business to continue to operate social media accounts if a key person is no longer around.

If you have questions about estate planning, including management of digital assets in the event of your death, we at HHG Legal Group would be pleased to meet with you.

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 our office on Freecall 1800 609 945 or email us now.

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