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When I'm gone, can you remember me? Challenges with digital assets

Posted on 17 May 2019

If a picture paints a thousand words, then a video must paint several million.  When we lose a loved one, there is nothing quite like looking at photographs or videos to make them still feel real and to keep their memory alive.

Years ago, people painstakingly stuck individual photographs into albums, which often became treasured collections, to be passed down through families.  Today, most people heavily rely on their mobile phones – they quickly take great quality snaps that are easy to store, and can look at photographs and videos with just a few taps. 

All sounds ideal, except when someone passes away either unexpectedly or even without having taken any steps to ensure those who would want the precious memories, have access to them.   

Rachel Thompson found herself in this scenario when her husband died unexpectedly.  Mrs Thompson spent three years trying to gain access to Matt Thompson's iPhone account, so that her young daughter could have her father's 4,500 photos and 900 videos and be able to keep his memory more vivid. The legal battle with Apple, which culminated in Mrs Thompson obtaining a Court Order (which is not an easy or quick process, especially as many of the technology companies are not based in England) giving her access to Mr Thompson's Apple account, reportedly cost Mrs Thompson thousands of pounds, not to mention the emotional cost at an already distressing time.

It is widely known that technology is developing quickly and that the law is not keeping up; the result is that bereaved families and friends find themselves unable to access accounts or digital assets – something which probably never occurred to them previously as being an issue.  It is estimated that nearly two thirds of adults in the UK do not have a Will, or to put it another way, only about a third of people think about what happens to their assets after they die (and of those, not all of them will give specific thought to their assets accessed digitally).  

The digital asset landscape is far from clear or uniform; providers deal with access to their data in different ways. In a case last year (Sabados v Facebook Ireland), the partner of a man who died was devastated when she discovered that all messages and photographs had been removed from his Facebook account; she said that she felt as though her partner had "died a second time".  Facebook was ordered to reveal who had asked it to delete the profile, which had not been requested or supported by any family members.  

Unlike many providers, Facebook does allow you to set up a "Legacy Contact" who is someone specifically appointed to look after your account after it has been memorialised (the actions the Legacy Contact can take are limited, including not being able to read messages). Memorialising is a step applied to the deceased's account, in accordance with Facebook's policy, when it is informed that the user has died.  In fact, Facebook has recently gone further, to try to address difficulties and potential distress when someone has died; it announced that it will be using artificial intelligence to stop accounts, which have not yet been memorialised, from appearing as they would normally.  This means users will not receive suggestions to wish a deceased person happy birthday nor to invite them to an event.

As Mrs Thompson discovered, Apple's terms stipulate that any rights to the deceased's content within their account terminate on their death, unless otherwise required by law.  Accordingly, Mrs Thompson had to obtain a Court Order to enable her to access her late husband's photographs and videos.

Stories such as these serve as a reminder that if we do not want to exacerbate the grief of our family and friends when we have gone, we need to think about what we have, and what should be done with it, when we are not around.  In a world where the law is struggling to keep up with our fast paced, technology-orientated lives and we have valuable, intangible assets, like digitally held photographs or social media accounts, we need to stop to consider whether much of it is at risk of being lost.

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