Many people spend a significant amount of time on social-media during their lives, and indeed use the platforms as a personal form of storage for memories kept by previous generations in albums and boxes. The data may be of sentimental value (for example family photos and notes from friends) or financial value (for example an Instagram account with a significant following that generates advertising revenue).
But what happens after the social-media account owner dies?
A personal representative for the owner of the social-media account must deal with the account as they would typically a membership. The terms and conditions that apply to each social-media platform will generally dictate what can be done with a social-media account.
Below we explore some of the commonly used social-media accounts and what currently happens with each account following the death of the account owner. It is important to note that each platform may amend their terms and conditions from time to time and it will be necessary to check the relevant platform at the time to ensure that the position set out below still applies.
Facebook gives you the option to memorialize the account or permanently delete it.
A person can select in their facebook settings during their lifetime, which option they would prefer. If they wish to have their account memorialized then they can also appoint a legacy contact of their choosing to manage the account after they die. Legacy contacts can do limited things with an account. They can write a pinned post (if your settings allowed for people to post on your timeline), respond to new friend requests, update your profile picture and / or cover photo and request the removal of your account. They can also download a copy of what you have shared publicly on facebook if you have checked the box allowing them to do this in your settings.
A legacy contact cannot login to your account, make any changes to your posts, read your messages, remove or request new friends or add a new legacy contact to the account.
If a person dies without having made a choice, the deceased’s family or friends can request that the account be memorialized provided that they are able to provide certain supporting documentation. Only verified immediate family members and legacy contacts can request the permanent deletion of a deceased person’s facebook account.
You can identify a facebook account that has been memorialized as it says the words “Remembering” next to the person’s name on their profile. Once memorialized, content that had been shared by the person during their lifetime remains on facebook and is visible to the audience with which it had been shared.
You will not see a memorialized account show up in the “People You May Know” sections of facebook, or be shown reminders of their birthdate. Depending on the privacy settings, friends can share memories on the timeline of a memorialized account.
Content created or shared by the profile owner during their lifetime remains the property of the creator. Facebook is granted a licence to use the content which is then terminated when you delete the content or the facebook account. Content that had been shared by others and not deleted by them may however remain on facebook.
Similar to Facebook, Instagram accounts can be memorialized by anyone who knew the deceased. This can be done by making an online request to Instagram and providing proof of death. The account can also be removed by verified immediate family members.
A memorialized account on Instagram does not look any different to an active account.
Content shared by the deceased during their lifetime remains visible to the audience with which it was shared.
Instagram will not allow anyone other than the account owner to login to an account and the account cannot be changed in any way.
Similar to facebook, the creator owns the intellectual property in the photos and videos shared on an Instagram account.
There is no option to memoralize a LinkedIn account. It can be deleted at the request of colleagues as well as the deceased’s family, provided that they are able to supply certain supporting documentation with the request.
No one is able to access the individual’s information.
For Twitter, the only option is to remove the account. A legal personal representative, or a verified immediate family member, can make the request to remove the account with certain supporting documentation.
Twitter will not provide account access to anyone other than the account owner.
Social-Media Estate Planning
When undertaking your general estate planning and business succession planning, it is important to consider and discuss your social-media estate planning with your Lawyer. You should provide a detailed inventory of your social-media assets and accounts so that proper advice can be given.
Legislation in Australia is yet to catch up with the use of social-media accounts and digital wealth. One of the complicating factors is that social-media information may be stored on various devices and with various providers, some of which may be located outside of Australia. There is also the added complication that each social-media provider has its own terms and conditions of use.
The best practice advice at the moment includes keeping a list of your social-media accounts and login details somewhere secure, and to update them regularly. This will be particularly important when it comes to accounts that generate financial revenue. Login details should not be included in Wills as these can be made public documents after your death. Specific powers for your personal representative to manage and deal with your social-media accounts should however be included in your Will, even though they may not be enforceable due to the terms of the user agreements.
Whilst accessing a deceased person’s social-media account may be a breach of the terms of the user agreements, including specific powers to do so in your Will can provide a court with evidence of your intentions and / or persuade a social-media service provider to allow the personal representative to access your account. Further, terms of user agreements may change over time such that this access is permitted.
As this will be an evolving area of law, it is important to regularly review your social-media estate planning and to closely follow any developments in this area of law, as well as the terms of the user agreements.
Are you a personal representative or family member faced with the reality of dealing with a deceased’s social-media accounts? Are you considering your own social-media estate planning? Contact us today to discuss your rights and obligations on 1300 941 900.