The NSW Law Reform Commission consultation paper regarding access to digital assets upon death or incapacity asks the following questions
(1) When a person dies what should it be possible for third parties to do in relation to the person’s digital assets? In particular:
(a) Who should be able to access those assets?
(b) What assets should they be able to access?
(c) For what purposes should they be able to access them?
(d) What documentation should be needed to authorise a person to access those assets?
(e) What restrictions should there be on that access?
(2) When a person otherwise becomes incapable of managing their digital assets what should it be possible for third parties to do in relation to those assets? In particular:
(a) Who should be able to access those assets?
(b) What assets should they be able to access?
(c) For what purposes should they be able to access them?
(d) What documentation should be needed to authorise a person to access those assets?
(e) What restrictions should there be on that access?
(3) Should NSW enact a law that specifically provides for third party access to a person’s digital assets upon death or incapacity? Why or why not?
(4) If NSW were to legislate to provide specifically for third party access to a person’s digital assets upon death or incapacity:
(a) How should the law define “digital assets”?
(b) How can the law appropriately balance privacy considerations with access rights?
(c) How can the law best overcome conflicting provisions in service agreements?
(d) How can the law best overcome provisions in service agreements that apply the law of some other jurisdiction?
(e) What else should the law provide for?
(5) What alternative approaches might be desirable to deal with the issue of third party access to digital assets upon death or incapacity?
(6) What amendments could be made to existing NSW laws to ensure appropriate third party access to digital assets upon death or incapacity?
The Commission comments
Having considered the difficulties with the law in this area, we are of the view that, in the absence of Commonwealth action, a possible legislative approach could be to enact NSW provisions that explicitly allow a particular class of person to access a person’s digital assets upon death or incapacity, in limited circumstances.
Preliminary submissions have made some suggestions about what any such provisions could contain. For example, they could:
- be based on existing models in other jurisdictions, such as in the US or Canada
- specify when NSW law is to be considered the proper law and a NSW court the relevant forum
- define “digital assets”, for example, in a way that:
- is “sufficiently broad to cover the types of assets currently in existence, but also flexible enough to encompass relevant classes or types of assets that may come into existence in the future”
- incorporates examples and exclusions of what constitutes a digital asset, and
- distinguishes between financial and sentimental assets so that specific considerations and rules can apply separately to each class
- which third parties should have access rights to what assets
- who should have the authority to decide what happens to a person’s digital assets, and
- what should happen if relevant parties disagree
- clarify how the wishes of a person should be taken into account when deciding about their digital assets upon death or incapacity exempt the operation of service agreements and privacy laws in defined circumstances
- impose obligations on service providers, such as Facebook, Instagram and Twitter, to ensure that, before accessing an account, users advise what they want to happen to their digital assets upon death or incapacity
- provide for the way in which relevant non-legislative tools (such as digital legacy services) should operate
- clarify the effect of existing laws that potentially create a barrier to access, such as succession and criminal laws
- set general or specific directives to preserve, delete or disclose a person’s data upon death
- make it an offence to misuse a person’s digital assets after death or incapacity
- freeze or suspend a person’s digital assets after their death or incapacity to avoid misuse or identity theft
