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estates
This
page considers about disposition of online content, including
access to your email if you die unexpectedly or are incapacitated
and control of blogs, personal sites and virtual swag.
It covers -
It
supplements the discussion of blogging, email and intellectual
property elsewhere on this site.
introduction
Although many people are "living much of their lives
online" - or, more accurately, having an online presence
- few appear to have given much thought to what happens
to that presence when they die or are incapacitated.
That reflects reluctance to contemplate physical extinction,
with most people in advanced economies failing to create
and maintain wills (often relying on marriage as the default
mechanism for handling their estates) or specify arrangements
for handling affairs on their behalf.
It also reflects the pseudonymity of much online activity,
with individuals
- using
aliases and relying on eventual expiry of the account
(and thus disappearance of the content) to preserve
their secrets
- not
disclosing passwords to family members or associates.
It
is reinforced by the opacity of service provider terms
& conditions that for example -
- specify
that there are no 'rights of survivorship' and so online
assets (including commodities in virtual
worlds) disappear
- do
not include provisions dealing with what happens when
the physical person dies or is disabled
- feature
requirements for identification (including provision
of death certificates) that inhibit action by the successors
of deceased individuals or representatives of incapacitated
people.
That
has meant that some content simply disappears when a service
is not used for a specific period (or is not paid for).
It has also resulted in disputes about access to email
and other content. Who gets to see - or delete - the mistress'
email to her lover? Do grieving parents get to maintain
a dead child's blog? Can an avatar in a MMORPG be bequeathed
and the creator thus 'live on' indefinitely as a ghostly
tribute to a deceased individual?
preservation
Other than contexts where the service provider imposes
some restriction (eg that an avatar is owned by the operator
of a virtual world and that 'gold' or other assets cannot
be sold outside that space) the onus is on service users
to preserve their content.
The provider is not necessarily obliged to ensure long
term access if you die, are incapacitated, fail to pay
the bill or omit to expose yourself to the advertising
that keeps Hotmail and its webmail peers afloat.
As noted elsewhere on this site, ISPs and ICHs go out
of business - on occasion with no warning - and technical
problems have led to the loss of homepages (Geocities
is a leading example), blogs and webmail.
Individuals desiring continuity, pre- and post-mortem,
are thus advised to adopt short term backup or long term
archival strategies that include copying email and photographs
to disks, printing crucial texts and using commercial
remote-backup services.
Some people of course would be aghast at unauthorised
scrutiny of personal correspondence, however innocent,
and are accordingly advised to actively manage their Hotmail
and Gmail accounts. Rather than leaving an executor to
cull such an account and eliminate a telltale instant
messaging address book or a partner to discover tears
like dirty postcards among sent/received email it is best
to periodically purge that information.
sites and other property
The disposal of personal sites and of virtual
world assets - 'treasure' and avatars in which an
deceased individual may have invested many hours (and
which may have an emotional significance for the deceased
person's successors beyond any financial value) - essentially
depends on the nature of the relationship between the
individual and service provider.
Successors typically have stronger rights over content
that -
-
is hosted on a commercial basis and where payment has
been maintained (ISPs will not provide hosting on an
ongoing basis if payment is not forthcoming and may
send alerts to email addresses or mobile phone numbers
that become inactive with the person's death/incapacity)
-
is hosted by a university or other institution with
comprehensive archiving programs
- is
not hosted on a 'free' (aka 'community') service such
as MySpace, Facebook or Gaydar
- is
not part of a commercial virtual world in which participation
is dependent on compliance with service terms weighted
in favour of the service operator.
The
fine print underlying some free services for example specifies
that the service operator may use the content of its participants.
The boilerplate for virtual worlds typically indicates
that there are no rights of succession (ie content is
not transferrable) and that participation is wholly at
the discretion of the operator, with no recourse if the
operator pulls the plug on the particular 'world' or radically
changes the rules for the virtual economy.
Some MMPORG players have subverted rules by assuming a
deceased friend's avatar, playing on as a tribute to the
individual and disposing of 'gold' or 'points' as that
person might have wished.
Tracking departures has become a minor genre, with sites
such as MyDeathSpace
attracting gawkers about the deaths of MySpace participants.
blogs
Treatment of blogs similarly
depends on the relationship between the blogger and service
provider.
If the blogger is using 'free' hosting provided by MSN
or a similar network that access is at the discretion
of the service provider and will be ended after sustained
inactivity. (The use-by date for most free services appears
to be 18 months.)
In contrast, blogs hosted by commercial ICHs and institutions
will remain online - irrespective of inactivity - while
the host is being paid or the institution considers that
hosting is worthwhile. One concern may be that the domain
name registration for the particular blog expires and
is not renewed.
Gaining access to a blog - for example for preservation
or for inclusion of a statement marking the author's demise
or incapacity - will typically involve the person's successor
or representative persuading the host that he/she has
the necessary authority, something discussed below. That
persuasion is easier if the host is personally known to
the representative; it can be difficult if the representative
is dealing with large ISP that is privacy conscious and
demands full documentation.
email
Consistent with the preceding comments, disposition of
email and webmail
reflects the shape of the service and the determination
with which successors pursue the content.
Email and webmail service providers have been wary about
blagging and other identity
crime (eg someone gaining illicit access to financial
and other data by purporting to be the account holder
or authorised representative).
They have also been wary about breaching the privacy of
third parties through unauthorised exposure of email sent
to one of their account holders, although of course services
such as Gmail - and search
engines - have considerable scope for surveilling what
people are up to.
Providers of commercial email accounts will accordingly
typically seek to cover themselves by requiring a person's
successor or agent to provide documentation that will
- demonstrate
the representative's authority
- immunise
the provider from liability if there is litigation.
Webmail
services also require such documentation. Although they
will not suspend an account (and eliminate an email address)
for non-payment of fees they will freeze an account and
eventually delete mail held on their servers after a period
of inactivity.
Google for example is reported to delete Gmail accounts
after nine consecutive months of inactivity. It will apparently
provide access to the Gmail account of someone who is
incapacitated or has died, subject to provision of that
individual's full name and contact information, a verifiable
email address, a copy of the death certificate and a copy
of a document that authorises the individual to deal with
the person's account.
Yahoo! suspends dormant accounts after four months, with
deletion after a further 120 days. Yahoo's service terms
feature a No Right of Survivorship provision: "This
means that users agree their Yahoo account is non-transferable
and any rights to their Yahoo ID or contents, including
contacts within their account, will terminate upon their
death".
Hotmail suspends inactive accounts after 60 days, with
expungement of dormant addresses and messages after 90
days.
Australia
Statute law and case law in Australian jurisdictions regarding
deceased estates varies but deals with
- who
is entitled to administer the person's estate
- rights
and responsibilities of those administering that estate
- in
whose name that person's property vests until dealt
with according to the person's legally enforceable intentions
(eg expressed in a will) or intestacy law (ie where
the person has not disposed of the property by a valid
will).
A person with authority to administer a deceased person's
estate is an executor or administrator, often referred
to as the 'personal representative'.
An executor is appointed by the deceased person's will
to administer the estate, including obtaining probate
of that will (ie proving that it is the last and valid
will of the testator). In contrast an administrator is
one appointed by a court to administer the estate, either
because there is no will or because the nominated executor
is unavailable (eg has predeceased the person or is incapacitated)
or is unwilling to act.
Grant of probate of a will provides official recognition
that an executor has the right to administer the deceased's
estate according to the terms of the will. Administrators
act under grants of letters of administration. The terms
and conditions of the relevant letter are set out by the
court, empowering the administrator to deal with the deceased
person's property in a manner that the court considers
appropriate by the court, and otherwise according to the
law.
Both grants provide official recognition that the executor
or administrator has the right to administer the estate.
Registration of death under legislation such as the Victorian
Births, Deaths & Marriages Registration Act 1996
is highlighted here.
primers
There is considerable variation in community expectations
(important for how service providers, corporate network
managers and others respond to requests) and legal frameworks
for the management of deceased estates. It appears that
most disputes are dealt with outside the courts and media
spotlights.
One exception was action by Yahoo! in 2005 preserve the
email account of US marine Justin Ellsworth following
his death on duty in Iraq. Ellsworth's family gained a
court order requiring Yahoo! to produce his email. Yahoo!
supplied a CD containing some of the messages from his
account, reporting that
Yahoo
responded to the court order by producing the email
content for Mr Ellsworth. Yahoo was pleased that the
court resolved this matter, both satisfying Mr Ellsworth's
request as representative of his son's estate, and allowing
Yahoo to continue upholding its privacy commitment to
its users.
For
Australia see Family Provision in Australia (Chatswood:
Butterworths 2004) by John De Groot & Bruce Nickle,
Hutley's Australian Wills Precedents (Chatswood:
Butterworths 2004) by Charles Rowland and Succession:
Families, Property & Death - Text and Cases (Chatswood:
Butterworths 2003) by Rosalind Atherton & Pru Vines.
For a broader view see Wills, Inheritance and Families
(Oxford: Clarendon Press 1996) by Janet Finch, Lynn Hayes,
Judith Masson, Jennifer Mason & Lorraine Wallis.
Emerging questions about avatars and swag are discussed
in The State of Play: Law, Games & Virtual Worlds
(New York: New York Uni Press 2006) edited by Jack Balkin
& Beth Noveck.
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