User-generated content defines the Internet today. No longer are websites repositories unilaterally providing static information. Instead, the Internet aggregates billions of dispersed users who participate in an ongoing, interactive, bilateral information exchange. This content — aggregated — creates a dynamic web replete with information used by individuals and desired by businesses interested in commercializing the social experience.
The value of these websites is composed of the bits of personal information each user provides. Value translates into assets, and assets are distributed and devised in an estate. Thus, a new question emerges: Who owns a decedent’s digital assets and online image? This question arises with regard to e-mail, online business and social networks. Estate planners and administrators can distribute these virtual assets by analogizing them to three traditional categories: letters and papers, traditional businesses and deceased celebrity names and images.
Every second, the world’s e-mail users produce messages equivalent in size to more than 17,000 copies of the complete works of Shakespeare (assuming a 30-kilobyte average e-mail size). Yet there is no consensus on who owns those e-mails — the service provider or the account holder who wrote the e-mail. Disputes over post-mortem access to e-mail accounts remain unresolved.
The social and historical importance of letters, diaries and manuscripts is undeniable. These writings shed light on an individual’s and society’s perspectives, opinions and culture, and historians study these documents to understand a time period. E-mails often contain such writings, yet, unlike traditional documents, e-mails are not clearly owned by the person who wrote them or easily retrieved by a person given full access to the writer’s possessions. E-mail highlights issues regarding preservation, destruction and control of an individual’s creation when that creation is mediated by technology.
An e-mail account may be analogized to a traditional asset based on its content. E-mails containing information about financial accounts are akin to financial statements an executor examines when settling an estate. E-mails containing lewd, salacious information are akin to written letters to a mistress, which a testator would want to remain undiscovered. E-mail address books containing contact information for family and friends are useful for informing contacts about the e-mail owner’s incapacity or death. Finally, some e-mail correspondence may have sentimental, unquantifiable value to family members and friends.
Often e-mail service providers’ contracts provide for executor access to a decedent’s e-mail account. Google and Microsoft require a death certificate and other verification information, while Yahoo outright forbids the representative from accessing the decedent’s account. Google’s Gmail, Microsoft’s Windows Live Hotmail and Yahoo Mail’s contracts all state that the e-mail accounts are nontransferable and thus cannot be devised. Neither clear-cut solution considers an individual’s wishes, yet both provide a definitive approach to disposition.
A testator seeking to circumvent contractual guidelines forbidding access should put a specific provision in the will stating an intention to give heirs access to the e-mail account. He or she should provide instructions on how to obtain the password, but the will, a public and largely stagnant document, should not contain passwords. Estate planners should remind testators to consider their e-mail as an asset, think about the privacy and utility issues attendant to allowing access to an e-mail account, stay informed about their service provider’s contract and make arrangements consistent with their intended disposition.
Business sales from an established online business or from an isolated sale of a personal item may be in process when a seller dies. Any ongoing transaction requires completion. However, an individual seller’s reputation also generates value for the business, and representatives should smoothly transition the business without losing that valuable goodwill. This response is time-sensitive, and appropriate planning by business owners significantly aids fiduciaries.
First, the online business’s website is similar to a bricks-and-mortar store. However, whereas a store is owned by an owner or landlord, a website could be owned outright by the individual or business, or by a host, such as eBay or Amazon. Whereas a landlord is not a party to a tenant’s business transactions, online sales websites are key parties to online transactions and receive value from it. Thus, they dictate a seller’s rights and can exercise control in managing and disposing assets.
Second, buyers and suppliers have contracts with the owner of an online business. However, whereas a decedent’s family would search for printed contracts for a store, the family may not know that online assets exist or how to locate them, manage their technical aspects, and dispose of them. The same solutions discussed earlier regarding awareness and account access apply here. With that information, the fiduciary can timely contact the appropriate Internet services to gain access to accounts, continue management, avoid contract breach and begin distribution.
Third, online sellers work hard to achieve a status as a reputable merchant, quantified in reviews and ratings posted by customers. These proxies for merchant reliability are a tremendous asset that should be carefully protected. Like any other business, an online business can be continued, sold or closed. However, accounts listed through a service provider are not considered a “going concern,” and the service providers often respond to notice of death by closing the account per the user agreement rather than arranging for transfer and maintenance of goodwill.
Finally, payment for an online sale is often transmitted from buyer to seller through an Internet service like PayPal. A seller may have a balance in a PayPal or similar online payment service account that must be listed as a monetary asset on any relevant tax returns.
Estate planners and administrators should consider online businesses both as revenue generators and bastions of goodwill and plan for their control and smooth transfer. Just as a valuable business passes according to its owner’s intentions, a valuable online business should have a viable succession plan.
On social networking sites, including Facebook, users create a personal profile and may add other users as friends, exchange messages, post thoughts, share photographs, link to Web content, and join groups for common interests, workplaces, education, brands, companies and organizations. A user profile, complete with personal content, presents an overall image of the user and is one factor in defining a person’s reputation and public image.
Historically, most people with a public image were leaders or celebrities whose careers and experiences thrust them into the public spotlight. Social networking sites change that norm. Now, everyone can have a public, written reputation, which raises the question of who owns and manages that reputation when the user dies.
Two areas of law provide a useful framework for considering an individual’s post-mortem control over a social networking profile. First, the law surrounding the right of publicity suggests that a person’s name and image are property rights, owned by that individual and descendible to heirs. Second, the law surrounding defamation suggests that damage to a person’s reputation is a compensable harm.
In New Jersey, the right of publicity is a property right that allows an individual, typically someone who is notorious or famous, to control the commercial use of his or her name, image and likeness. As a property right, the right of publicity is devisable and descendible — and thus can exist as a post-mortem asset. However, an owner may only invoke the right of publicity if someone misappropriates that person’s image for a commercial purpose, and it is unlikely that anyone would appropriate another person’s Facebook identity for commercial purposes.
A claim for post-mortem defamation may be more relevant, but this cause of action does not presently exist. While some jurisdictions’ survival statutes permit a decedent’s heirs to maintain a lawsuit for slander, libel or invasion of privacy, no jurisdictions permit heirs to initiate a vicarious cause of action for damage to the decedent’s reputation inflicted after death.
Facebook and Twitter have specific provisions to protect decedents’ post-mortem online reputations. Facebook “memorializes” profiles of users who have died — removing them from public search results, deleting sensitive information, blocking any log-in attempts and enabling people to pay their respects through wall posts. Twitter removes decedents’ accounts and offers to assist family members in saving a backup of the decedent’s public tweets.
Estate planners and administrators should consider the property and privacy interests a user has in protecting his or her reputation on an online social networking profile. Drafters must recognize developments in technology and raise appropriate questions when creating an estate plan, and executors must know when to notify a website of a user’s death. In this way, a decedent can protect his or her online image and reputation, a valuable personal and property asset.
Social media, digital assets and electronic personal property raise new questions for estate planners and administrators. By analogizing the core components of these assets to traditional categories with well-established procedures for location, identification and transfer, planners and administrators can prepare for disposition that complies with online service contracts, is consistent with a testator’s preferences and intentions, is smooth and timely and preserves the value of this property.
This article first appeared in the New Jersey Law Journal, a Legal affiliate.
Mindy P. Fox is a 2010 graduate of Fordham Law School, cum laude, and an assignment judge law clerk for the New Jersey Superior Court. The content in this article represents her own views and not the views of the New Jersey judiciary or any individual judge.