This article is written by Puneet Bhasin, founder of CyberJure and an advocate specializing in cyber law litigation.

A legal dilemma if not included in the Will

The concept of property has undergone plethora of changes, with the emergence of social networking platforms. The photos we share, the posts we make are our digital property. Every person now-a-days has a part of himself online, and the family and friends would want to preserve this legacy too after a person is no more. We have a lot of memories stored online which our loved ones would want to preserve. Digital assets also include music, films, email accounts and computer game characters.

In a very recent case of Toronto based Alison Atkins, the sixteen years old lost a long battle with colon disease. Her sister had a technician crack her password protected Mac Book Pro, as her family wanted to access her digital remains like her facebook, twitter, yahoo and hotmail accounts, which were her life line during her illness. Alison had pictures poems and messages written on these inline forums which her family wanted to preserve.

However, accessing Alison’s accounts without her authorization was an act of unauthorized access and punishable by law.

Under the Information Technology Act, 2000, it is a violation of Section 43(a) and Section 43(b) of the Act.

These provisions read as under:

Section 43: If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network,-

(a)  accesses or secures access to such computer, computer system or computer network

(b)  downloads, copies or extracts any data, computer data base information from such computer, computer system or computer network including information or data held or stored in any removable storage medium.

-shall be liable to pay damages by way of compensation to the person so affected.

The unauthorized use of Alison’s passwords violated the website terms of use and provisions of cyber laws too. None of the service providers allowed the Atkins family to recover her passwords and access her accounts as that would amount to a violation of her privacy. The attempts of the Atkins family to recover the digital remains of their daughter fell apart as facebook and all the other service providers started to block them out.

The digital era adds a new complexity to the human test of dealing with death. Loved ones once may have memorialized the departed with private rituals and a notice in the newspaper. Today, as family and friends gather publicly to write and share photos online, the obituary may never be complete.

But families like the Atkinses can lose control of a process they feel is their right and obligation when the memories are stored online—encrypted, locked behind passwords, just beyond reach. One major cause is privacy law. Current laws, intended to protect the living, fail to address a separate question: Who should see or supervise our online legacy?

In 2009, Facebook began to allow family members to either delete or “memorialize” the accounts of the deceased. In a memorialized account, the people on a person’s existing friend list can still leave their comments and photos with the account of a dead person. But nobody has permission to log in or edit the account. However, this could also lead to cases of cyber defamation where there could be defamatory posts made, and the family is not authorized to delete or edit them.

The only solution to this is that digital legacy must be included in wills, and people should leave clear instructions about what should happen to their social media, online accounts and other digital assets after their death. If we make our wishes clear now as to whether we want our digital legacy to be closed down or preserved, it becomes much easier for loved ones to comply with our wishes.

Please leave a comment below if you want Puneet to write more often, and you can even suggest topics. Her LinkedIn profile is here.