Digital Life after Death: Social Media and Your Digital Content Post Mortem
Nov 5th, 2009 | By Jessica Dobias | Category: Copyright, Facebook, Featured, Lead Article, Privacy, Social Media, Social Networking, Web 2.0
How Lawyers View Death
Death is always a morbid topic, but we’re mortal beings and it’s better to discuss this topic sooner rather than later. As law students we are quite detached from death because we are trained to think of death in legal terms infused with logic and exempt from pathos.
In law school, students learn a logical sequence of events for determining the next required action. A law student who has just learned of the passing of a person might view his or her passing as a logic problem filled with questions and variables. The student will ask whether the decedent left a will, whether the will was handwritten, was the will written in proper language, what does the will say, are there any ambiguities in the terms of the will, and what sort of conveyances are being given, etc. etc. etc. All of theses questions to answer a simple question: What happens to the decedent’s property and possessions after death?
Death 2.0
A few online companies have taken the idea of a will to a new level. Legacy Locker allows the user to convey his or her digital assets to a beneficiary. A user can convey his or her PayPal, Facebook, iTunes, Gmail, and Flickr account information to a beneficiary for safekeeping after death.
If the user is worried about unresolved issues before death, he or she can write a letter to a friend or foe that will be sent upon his or her death with My Wonderful Life. Users can plan out their funerals, indicate to loved ones what they’d like to be placed on their headstone, how they’d like to be buried, which songs to play at their funeral, etc. Also, share photo albums and content with other users.
Here’s what the website offers:
* Make funeral plans
* Write your obituary
* Design your own headstone
* Write letters to loved ones
* List where your stuff is
* List your favorite music, memories, values, photos, and writings
* Take care of your pets
Social networking sites have also equipped their sites for dealing with death. Facebook created a new feature allowing deceased users’ pages to be memorialized. In other words, if your friend passes away, Facebook will allow that user’s information to be memorialized and will no longer allow friend requests to be sent to the deceased user. Only confirmed friends will be able to view the deceased user’s page and the deceased user’s page will not longer be searchable. The intent of this new feature is to allow friends and family of the deceased user to share content, memories and thoughts on the deceased user’s wall while protecting the privacy rights of the deceased.
The Battle Over A Deceased User’s Content
Facebook recently had a small battle with a relative of a deceased user who wished to have her brother’s content removed from the website. Facebook refused to remove the user’s content, but later changed its mind once the Consumerist wrote a nasty post claiming Facebook could not legally refuse to remove content from its website if the estate holder requested it be removed. It seems Facebook’s new memorialized user content pages are reflective of Facebook’s desire to maintain deceased users’ content, while combating the legal and ethical battles that could ensue.
Yahoo, Inc. also lost its battle with the family of a deceased U.S. soldier killed in Iraq. The family of Lance Cpl. Justin M. Ellsworth sued Yahoo for the right to access their son’s email account. Yahoo finally handed over the 10,000 pages of contents from the email address after a judge handed down the order last year.
Questions Thanks to Anne Frank
Legally speaking, I own my content. I can remove, add, change all of the content I put on social networking sites, on my personal blog, share on Twitter, send in an email, etc. But after death, I don’t have the same control. My beneficiary has the rights to all of my digital content.
Do you care what happens to your digital content after death? In some small way we all hope to be remembered, whether it be in the memories of our loved ones and friends or by the online world. However, there is some digital content that content creators produce and publish on private webistes that they don’t necessarily intend to be made public.
I’m sure many of you have read The Diary of Anne Frank. I remember as a little girl reading the appendix of the book and reading how Otto Frank, Anne’s father, excluded certain content from the published version of Anne’s diary because he felt it was too personal and were Anne’s private thoughts. Anne was only fifteen when she died and she could have never imagined her diary would be such a phenomenon and so widely loved and cherished by millions of readers across the world.
Yet, as digital content creators we know our content will be published and we know one day we will die. So it only seems logical that we should leave some sort of instructions on what should happen to our digital content when we die. I can’t help wondering if Anne would have chosen to leave in those portions of her diary for the world to read or if she would have omitted more of her thoughts had she had the opportunity to leave such instructions.
Maybe we should learn from Anne Frank and consider leaving instructions for our digital content either in our actual wills or through Legacy Locker and websites like it. What are you thoughts?
Related posts:
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- YouTube v. Viacom: What This Means for User Generated Content
- New Social Media Law Student Features: Meebo Chat, Drag to Share on Twitter and Facebook
- The Facebook Re-Tweet
- Your Private Parts and Behavioral Advertising
- A Lawyer Can Have a Facebook Page
- Nike: Social Media and Lawyers
- Why Blog Comments Matter
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- A Legal Perspective: Google Fast Flip
Great question. It came up at the end of our wills and trusts course and the answer seemed to be – who knows? Certainly there are some forms of digital content that can be passed on to our beneficiaries, but I think it’s less clear for a social media service like Facebook. For instance, I would be comfortable with the survivors of a facebook friend inheriting control over the account and maintaining it but I would be outraged if his or her heirs then auctioned it off to a marketing company in an estate sale. The content is owned, but it doesn’t seem to be just like any other property.
I guess the real question is whether a legal remedy is necessary yet to set default rules regarding ‘legacy’ content? Perhaps it’s best left to the market to decide how to handle this at this point – i.e. a point of competition among social media providers or a potential service provided by lawyers in managing the disposition of digital assets after death.
[Reply]
Jessica Dobias
Reply:
November 5th, 2009 at 5:54 pm
I’m impressed that your wills and trusts class covered this question. I haven’t had Estates and Trusts yet, but my property professor didn’t even cover the topic of digital content after death. I’m happy that someone is covering it!
As for Facebook and digital content, I think you’re absolutely correct. I was actually inspired to write this article after two of my friends passed away and their Facebook profiles became memorialized. I know the individuals who now control those accounts are family members, but you’re absolutely on target with question concerning what happens to that content after the beneficiaries die. Does that content get handed over to the next set of beneficiaries or is it forgotten – and later sold as digital treasures of a forgotten person? Kind of morbid.
I don’t know that there needs to be a legal remedy either, but it seems people should be begin thinking of their digital assets and content. I checked out your blog and I noticed you have quite a bit of content circulating on your site. Have you made any plans for what happens to that content if something unexpected happens? I guess that was really the point of the blog post – I think people should start thinking about their digital content.
People often forget that they own their content and freely share it with Facebook, Flickr, Twitter, blogs, Google Profiles and LinkedIn. There is so much content free floating and often forgotten from wills. That information belongs to somebody and should be removed or entrusted to someone who the now deceased owner can trust, don’t you think?
I guess I just worry that the market will be too slow to catch up and people’s content will get forgotten or overlooked leaving it to greedy websites that use and abuse it for marketing purposes. Maybe I’m too much of a skeptic, but I hope this post made at least one person think about their digital content and protecting it.
[Reply]
[...] This post was mentioned on Twitter by John Carter McKnight and Jessica Dobias, Tyson Mutrux. Tyson Mutrux said: Digital content: http://bit.ly/N7GAR [...]
Jessica,
Great article. I’m really pleased to see this topic gaining the attention of the legal community. Online content is changing the way we present our identity, publish our intellectual property and grieve and it’s going to require some new precedents to govern it.
To answer your question, no matter how you do it, it’s very important to leave instructions for the disposition of your online content. I think it would be a significant headache for your survivors if you did not.
[Reply]
Rex Gradeless
Reply:
November 6th, 2009 at 10:28 pm
Just wanted to point out that Evan Carroll has a great post about Legacy Locker here – http://www.thedigitalbeyond.com/2009/10/jeremy-toeman-on-the-importance-of-online-assets/
[Reply]
nice,thanks for the info
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