Death and the Digital Maze: Simplifying Access to a Loved One's Online Assets

I'd like you to take a moment and think.

Consider as many aspects of your home and work lives as you can. Now, reflect on what percentage of your daily activity is facilitated by technology.

I would hazard a guess that many individuals reading this will find themselves digital-dependent to a surprising degree.

From the cars that we drive, the way that we shop or gain access to our gym, turn on our living room lights or interact with business clients and family, so much is done from our smartphones, tablets or computers.

Even if we're not so passionate as to insist on having the latest products, we still need to update their software to ensure that they remain able to do what we demand of them.

Eighteen months ago, Apple released an update - iOS15 - to its operating system for iPhones (https://www.apple.com/uk/newsroom/2021/09/ios-15-is-available-today/).

In addition to improvements to messaging, maps and video calls, one feature may have slipped the attention of Apple's millions of customers.

It was the creation of something known as a 'Legacy Contact', allowing users to nominate someone who could access the data stored in their Apple accounts in the event of their death (https://support.apple.com/en-gb/HT212360#:~:text=About%20Legacy%20Contacts,Apple%20account%20after%20your%20death).

The move followed a number of cases in which families had taken lengthy and costly legal action to obtain the online assets built up by their deceased love ones.

One such case was brought by Rachel Thompson from West London, who was only granted access three years after beginning legal proceedings against Apple (https://www.dailymail.co.uk/femail/article-7027195/Widow-fought-Apple-gain-access-dead-husbands-iPhone-family-photos.html).

Against that context, establishing a Legacy Contact is a step forward. Even so, organisations such as technology companies whose entire businesses are founded on data are naturally wary of allowing free access to the information which they hold.

If Legacy Contacts are not set up before account holders die, then their families must still obtain a court order.

For those unfamiliar with the procedures involved, they can be daunting but they are increasingly important and are likely to become increasingly common unless there is a change in the law.

That is in part because - once more - the legislative framework which governs our lives lags behind the way in which those lives are lived.

One might argue that is hardly surprising given the pace at which technology has developed in the course of the last few decades.

Nevertheless, as recent parliamentary debate has made clear, there is no definition in UK law as to what constitutes a digital asset (https://hansard.parliament.uk/commons/2022-01-18/debates/AF75D719-07AD-446D-B2AD-754C0D785B1A/DigitalDevices(AccessForNextOfKin).

It is vital that one is put in place due to the fact that the material which is stored is not only sentimental, like family photos.

Many of us also have digital bank accounts, loyalty points, downloaded music and films or even cryptocurrencies: all things which have a financial value.

That point is fully appreciated by the MP Ian Paisley. Last year, he introduced a Private Members' Bill in the House of Commons in an effort to provide some much needed clarity (https://bills.parliament.uk/bills/3097).

According to Mr Paisley, "an estimated £25 billion of assets in the UK are held online in password-protected cloud storage solutions such as iTunes and social media accounts".

If his Digital Devices (Access for Next of Kin) Bill had become law, surviving relatives or loved ones of account holders would be granted immediate access to digital assets "without their having to take costly or uncertain legal action against digital platforms"

Sadly, Mr Paisley's very worthy Bill did not even have a Second Reading before parliament was prorogued.

The problem has had even more focus since. A consultation organised by the Law Commission about the issue ran for four months and a report is due to be published this summer (https://www.lawcom.gov.uk/project/digital-assets/).

Even if the Commission recommends legal reform, though, it is likely to be some time before any legislation finds its way onto the Statute Book, even with the support of Government.

As a lawyer who has already dealt with a number of such matters on behalf of bereaved families, that cannot come soon enough.

In the meantime, I suspect that many more relatives whose loved ones passed away without nominating a Legacy Contact will find the expense and uncertainty of court action compounding their loss.