Heirs vs. Facebook: Who legally controls a deceased person’s digital remains?

Heirs vs. Facebook: Who legally controls a deceased person’s digital remains?

Anyone who is on social media has digital footprints that extend far beyond the physical realm. If you post photos on Facebook, send messages on messaging apps, and access your financial records online, you contribute to a vast online archive that persists long after you're gone.

This raises a complex question: who has legal rights to a deceased person's online accounts and data? The answer, as explored in Carl Öhman's book The Afterlife of Data, isn’t clear-cut and often sparks conflict between the interests of grieving families and the policies of social media giants like Facebook.

The legal labyrinth and the Facebook fiasco

There’s currently no universal law that governs the inheritance of digital assets. Often, the terms of service (TOS) of the platform in question hold the key. Facebook's TOS, for example, states that accounts are nontransferable. Upon a user's death, the account becomes “memorialized,” meaning the profile remains visible but inaccessible.

This policy gained notoriety in the tragic death of a 15-year-old girl in Berlin who was hit by a bus in 2012. Desperate to understand if their daughter’s death was a suicide or an accident, her parents sought access to her private messages. Facebook refused. The girl’s profile had already been converted into a “memorialized account” that cannot be accessed even with a password.

This heart-wrenching saga culminated in Germany's highest court ruling in 2018 that Facebook must hand over the profile. The case highlights the emotional toll these digital afterlives can have on grieving families and the lack of legal clarity surrounding their rights.

The right to privacy vs. the right to inheritance

The issue of digital inheritance raises a conflict between two important legal principles: the right to privacy and the right to inheritance. Heirs may argue that they can inherit their loved ones’ digital assets, just as they would inherit physical possessions. They may want to access old
photos, messages, or other data for sentimental reasons or to gain a better understanding of their family history.

On the other hand, social media platforms have a responsibility to protect user privacy. They argue that allowing heirs full access to a deceased person’s account could violate the privacy of the user and their contacts — even if the user has passed on.

Informational corpses and limited options

Öhman argues that data left behind after death is akin to “an informational corpse.” Imagine a vast digital graveyard containing billions of profiles, a chilling thought considering a study by Öhman and David Watson that predicts Facebook alone will house almost five billion deceased user profiles by the end of the century. Who controls this vast archive of the departed?

In 2015, Facebook introduced a “legacy contact” feature, allowing users to designate someone to manage their page after death. However, this is a limited solution. The legacy contact can only manage tribute posts or request account deletion. What happens when the legacy contact dies?

The digital afterlife

In the digital age, we are confronting an uncomfortable truth: when our loved ones leave this world, their data persists as digital ghosts in the cloud. Currently, no regulations prevent tech giants like Meta and Google from exploiting this data or erasing it.

The issue of digital inheritance is complex and requires a multifaceted approach:

  • Comprehensive TOS: Social media platforms must develop clear and informative TOS outlining what happens to user accounts upon death. This empowers users to manage their digital legacy and provides heirs with clear expectations.
  • Expanded control over data: Users should have the option to designate trusted individuals for full account access after death, alongside a data download option for preserving essential information.
  • Legislative frameworks: Governments need to develop digital inheritance laws that respect the privacy of the deceased while protecting the rights of heirs.

Finding a path forward

Navigating the uncharted territory of digital legacies can be legally complex and emotionally draining. Should you find yourself in such a situation, don’t be overwhelmed. You can turn to us at LaGrandeur & Williams for assistance. We’ll make sure to treat the digital remains of your loved ones with respect and understanding. For family law and other quality legal services in Washington State, contact us today.