KERALA LAWYER


LAW AND DIGITAL AFTERLIFE
Sreejith Cherote, Advocate, Calicut.

Life after death is a mystery, but some say life itself is an illusion inside the internet of our mind, created by the ultimate software called universe. We are all, as off now, powerless to see beyond the flowchart of this program. We have been given a spiritual concept called “MAYA” as a philosophy which will try to explain the scenario beyond inevitable. When we leave this world it’s a fact that we won’t take any hardware. But what about the stored-up information in the personal software inside us. Do we carry it, to the next level? Or will it perish with our hardware? Is a historic question which remains unanswered to its perfection, even today? It’s true that we are unable to answer in clarity about the survival of our own software after our demise .off course such an enquiry is beyond the realm of law. Hence confining my expression within the limits of law, I will shift my focus from an adventurous pursuit of a spiritual life, to a legal commonplace were questions are not so impossible to answer.

Therefore shifting my focus from human life to “digital life” or rather “online life”, Will try to advert and respond to the query, what happens to the digital world created by us after our death.

We have shifted to a digital culture. Emails, blogging, face book, orkut, twitter, LinkdIn, YouTube, flicker etc, and have become a mainstream activity. From net banking, to online stock trading, eBay to online courses, we are more linked through digital communications than any other means. A global culture transcending race, religion, class, creed, and sex that which is impossible within the real world has evolved and emerged as a reality in digital world.

In digital world certain property rights accrue to us automatically. Copyright in emails, blogs, photos, and other writings as with other personal possessions form part of the property of the individual, therefore after him the ownership has to pass to his heirs, executors or personal administrators. Sad thing being that many has passed without being aware of the existence this ownership to them. Lack of awareness, regarding digital property rights is giving a free hand, for the ISP’s (internet service providers) to adopt their own policies totally disregarding the property rights of individual users.

Now some crucial question arises with the digital life of a person, when dealing with all these digital service providers, especially in the field social networking. Who is the owner of the contents posted by the us, Service provider or the user? What will happen to the contents posted by the end user after his death? Who will have access to the password and confidential information of the user after his death? What documents are needed for proof? Will families have control over all of the content? Will the account be deleted against the family’s wishes once the service learns of the user’s death?

A very few internet service providers has developed policy for dealing with the afterlife of its customers and even few have a published policy. When it comes to the death of their users, most services are decidedly vague on the issue, if not completely mute . At a time of grief, families who are looking to know what options are available to them and what steps needed to exercise those options will be frustrated by lack of information. It is rare for companies to post fully developed policies related to the death of a user. The afterlife policy of service providers defer in contrast. Gmail does not delete the deceased users account that has a storage capacity of up to 7 GB (around 70000 emails with a small or medium picture attached to them) permission is also granted for the next relative to apply for access of the deceased users email account if applied with proof of identity and production of death certificate of the account holder and proof of an email between him and the deceased.

In case of YouTube you need to fax with the copy of the death certificate with contact information and a verifiable email and document to prove your claim.

Twitters approach is somewhat similar on notification of death of user, family members can remove their account or backup their public tweets. Mostly all the web service providers have a Terms of Service (TOS) and Within a TOS are statements relating to who owns the content that you put on that service including, Status, updates, blog posts, photos, whole web sites, digital purchases and what can be done with it. Overwhelmingly, the TOS will state that accounts are non-transferable. Complications set in when a user dies and the policy is unclear on the rights of next of kin or executors.

The difficulty arises for the reason that the law has evolved keeping in mind the physical actors and physical media with reference to the legal consequences . Even though law has made up for the new development by incorporating intangible item also, within the purview of property by new legislation and legislative amendments, the same has not received the social acceptance so as to include digital assets as something worthy to bequeath. Hence the default position with respect to the digital assets remains that, after your demise there is no guarantee that your heirs will inherit the same .

A solution which would set at rest all these issues is to include your digital assets also into your “will”. Unfortunately in our country Digital assets have not gained entry into the item of property which a testator bequeaths for his heirs. Often in case of persons like celebrities, writers, politicians and other prominent personalities, digital assets are more valuable than physical property for which usually no arrangement will be made in their “will” creating space for counter claims, confusion and litigations.

You can also create a “digital will” which will contain a list of website and their passwords and other information to access a particular website and entrust your trustworthy person to intimate it to your heirs, executors or administrators. Making a digital will is so easy in the sense that you can enlist your username and password and make arrangements for the purpose of handing over the same to the persons you like to have the access to them. The greatest advantages of this type of digital will is that it’s simple and there is no requirement to comply with the strict formalities of a will as per the Indian succession Act nor bound by the legal qualification as per the Indian Evidence Act.

There are a couple of website like, “Legacy Locker” , “Last massage club”, “Entrustet.com” “Assetloc.net”, “Deatswtich.com”, etc, which for a monthly or life time fee can upload or store all personal passwords and documents in encrypted form which are then emailed to your pre-chosen contacts in the event of your death . There is yet another website which offers to virtualized you by creating an AVATAR (a graphical image that represents a person, as on the internet) of you, incorporating your physical traits, habits, mannerism, looks, body language etc and preserve the same for your future generation even with the option to interact with them. This will enable your Grandsons or Granddaughter to know about you, and interact with you, virtually even when you are dead. A “Digital will” will is also useful for persons committing “digital life sacrifice” (practice of ending digital life, commonly done by celebrities most often done for a noble cause Eg- to raise funds for charity, they declare that they will sign off from digital world like face book or twitter etc, if a required amount is not provided by their fans for a particular charity) as well, for nominating a person who will inherit their digital legacy. The author is reminded of the “literary life sacrifice” committed by a respected senior advocate of our High court and the effort of his fans, friends and junior lawyers to buy back his literary life with love, reverence and respect.

Digital life is most often a reflection of the physical life personality of an individual. Hence the best method to reveal yourself to the future is by preserving your digital record of life. To preserve digital legacy is as important as or at times even more important than preserving physical legacy. Your physical property is safe and secure, by operation of law even without your testamentary disposition. But in case of your digital assets unless and until you are having a policy for digital afterlife management and consciously acting in terms of preserving the same it cannot be said, as of now, that your digital life is in secured hands for the reasons that the ISP’s are even authorized to erase your digital assets in the absence of a conscious step for its preservation.

Everyone likes to mummify their life for the future generation. The Egyptian Pharaohs have tried in vain making arrangement for their afterlife and it’s only a historical slip-up of time, that the Pharaohs reined in an age where there were no means for digital life preservation, Otherwise we were sure to get a virtual account of these legendary rulers.

Immortality is a state impossible to achieve within the physical sphere of life but nevertheless a reality within the digital sphere, hence this cue to save yourself for the future, before a shutdown.

REFERENCE

1.Death and digital legacy.com
2.Digital Afterlife: leaving your legacy online, August 13 2010, Business Standard.
3.Chris Reed, Internet Law Text and Materials, Second Edition.
4.DIGITAL LEGACY FUTURE PROOFING A VIRTUAL LIFE IN THE DIGITAL WORLD- Paper submitted by Nichola Plant and Ellie Johnson- Cadwell, Thomas Eggar LLP.
5.Protecting your digital assets after death, By Ian Hardy, BBC NEWS, news.bbc.co.uk.
6.Dictionary.com

The author can be contacted directly at the following email address:
sreejithcherote@gmail.com