24 April 2019

Your digital legacy: new problems for the Facebook generation


Jo Sanders
Partner | UK

Facebook announced in April that it is using artificial intelligence to try and prevent notifications being sent to a deceased person’s friends and family; an unfortunate automated function that has caused much shock and distress.

The social media site allows users (over the age of 18) to either have their account deleted on their death, or to appoint a legacy contact who can manage a memorialised account on behalf of the deceased. This presupposes a number of steps, including that users have made use of those functions and that the deceased has arranged for someone to notify social media accounts of the death. If no digital legacy planning has taken place, then the potential for dispute between family members or others as to who should have the right to control private information residing on the servers of a social media company becomes obvious.

The recent case Sabados v Facebook Ireland in the English High Court illustrates some of the potential difficulties of digital legacy. Ms Azra Sabados obtained a court order against Facebook for it to disclose information about who had instructed it to delete the account of her late partner. The couple had been in a long-distance relationship for a number of years and they had frequently communicated through Facebook Messenger. After his sudden death, someone unknown to Ms Sabados, contacted Facebook and asked it to delete his account, which it did.

Whilst the case demonstrates that disclosure orders can be obtained against Facebook in some circumstances, it also leaves many unanswered questions. It was Ms Sabados’s case that the person who had contacted Facebook did not have authority to ask it to delete. But who does indeed have the authority to do so? On the question of deletion, Facebook will follow the instruction of a legacy appointee. However, such a legacy contact cannot access copies of the individual’s messages or account information. To obtain that kind of wider access, Facebook says that it requires proof that the requesting party is an ‘authorised representative’ and that they have obtained a court order. Precisely who constitutes an authorised person though is likely to be subject to local inheritance laws and therefore will vary from place to place.

In Germany, Facebook was involved in a dispute with parents of a deceased teenager after it refused them access to her Facebook account. They felt that her messages may shed some light on the tragic circumstances of her death. In July 2018, the court held that under German law there was no reason to treat digital content differently to paper documents, like a diary, and that the parents could inherit the contract between their child and the social media platform.

Unlike some other laws which govern individual reputation, such as libel (which does not survive as a cause of action after death), the law of misuse of private information may survive and enable an individual’s Estate to pursue claims of infringement of privacy. If an unauthorised person therefore obtains access to a deceased’s private emails – perhaps because they simply know the computer password and can login to it – this may be unlawful. For any person in the public eye, in whom there may be interest in exposing previously unknown details of their private life after their death, those around them could succumb to temptation to misuse the hitherto private email account and hand its contents to a journalist or publisher. Executors of such Estates should give careful consideration to access, control and use of private information online.

It was in 2006 that Facebook was first available to the public and within six years had turned into a global phenomenon. By 2025, those early adopters who signed up in their 20s will be close to 50. As the Facebook generation matures, it seems inevitable that social media’s privacy issues will transfer into post-death questions about control of intimate information for those whose lives were lived online.

Jo Sanders Partner | London

Category: Article