Digital assets are closely intertwined with our everyday life, from supermarket reward cards, photographs, blogs, music accounts, online banking, emails, eBooks, social media accounts…the list goes on.
Failing to provide for the future of digital assets can have consequences and may cause additional stress to family members after the death or mental incapacity of the loved one in question.
The law in the Isle of Man is unclear of the position of Digital assets. Some digital assets that contain rights such as digital property rights (which include an individuals’ ownership of copyrights, trademarks and design rights) can be inherited or passed by testamentary disposition in a Will or rights can be granted in respect of such assets through powers of attorney. However, although physical digital assets can be transferred this way too (e.g. Mp3 players, tablets, laptops, USB drives), the digital content on them does not necessarily legally pass with them. This is because these assets do not vest in the personal representative after death, it being left up to the content provider to decide who can access these records, if anyone.
This is because much of the content we access and download online during our lives is subject on our death or incapacity to contracts entered into with the provider at the time we signed up, via the provider’s terms and conditions.
Many assets that we consider to own are often governed by “End User Licence Agreements” (EUAs). These Agreements stipulate that the user does not own the asset but merely has use of it until the end of their life.
It does, however, depend on the provider. Some digital assets can be inherited. Certain social media sites have guidance pages detailing the options available to family members in the event of a user’s death or mental incapacity, such as closing the account or page.
However, on the whole it is very unlikely anyone other than the original user will be granted access to the account in question.
To read the full article, including tips for ascertaining the future of personal Digital Assets, download the pdf here: Dealing with a Digital Presence on Death or Incapacity