Introduction

We live in a world where our entire identities are created, developed and stored online, in different accounts owned by various service providers, such as Google, Facebook, Instagram, Twitter, Apple and Microsoft. Once users who engage with all or some of this die, many interesting and concerning questions for lawyers, but also the wider public, arise (Carroll, 2018). Stakeholders who would have a stake after this unfortunate event may include the deceased's family and heirs, friends, service providers, researchers, historians, archivists and, sometimes, the public. There have been many cases reported in the media depicting some of these interests and their conflicts, albeit case law is still very scarce in most countries (BBC News, 2005; Gambino, 2013; Sancya, 2005; Williams, 2012). These cases related to some key questions that have largely remained unanswered: should bereaved family members be allowed to access the dead user's digital accounts? Is the service provider obliged to enable the family this access? Should friends have access to the shared content on Facebook? Do users have a right to decide what happens to these accounts when they die? What about the right of access by the wider public, journalists, archivists and historians in particular? All these questions reveal the complexity of digital assets, remains and posthumous identities. Yet still, in the UK a credible research study has found that 85% of participants are not considering the implications of digital death (Digital Legacy Association, 2017). In this chapter, I aim to shed some light on these questions and offer some mainly legal solutions, but look at their wider implications as well.

There is now abundant legal scholarship in the area, and many authors have embarked on identifying key issues in laws related to digital death, as well as offering some solutions and ideas (e.g. abreve beanu, Gavrilă and Mareş, 2009; Cahn, 2011, 36–7; Haworth, 2014, 535, 538; Hopkins, 2014, 211; Lopez, 2016, 183; McCallig, 2013; Perrone, 2012–2013, 21). This author is one of them and has been writing about the topic for more than six years now (Edwards and Harbinja, 2013a, 2013b; Harbinja, 2014a, 2014b; Harbinja, 2016a, 2016b, 227; Harbinja, 2017a, 2017c, 2017d). In spite of this, many western jurisdictions still struggle to find the right (or any) response to the conundrum of questions around regulation of digital assets on death.