Edina Harbinja

'What Happens to My Facebook Profile When I Die?' : Legal Issues Around Transmission of Digital Assets on Death

This chapter will address the social and legal problems of transmission of digital assets on death. It questions whether existing well-known systems of laws and norms for transmission of property and assets on death are fit for the purpose of bequeathing the new “digital assets”. These assets are not simple to define and combine very different categories of assets including, e.g., traditional intellectual property assets such as digitised songs, social network profiles, assets in virtual worlds or games, emails and passwords. In particular it is controversial if (some of) these assets are best viewed as “property” or “obligations”, which has substantial effect on the legal consequences. In practice, at the moment, the area is mainly controlled by privately ordered rules of contract, i.e. the terms and conditions of different service providers, rather than by the general law of property and succession. In the realm of transmission of assets on death, this is unsatisfactory as it means the “rules” vary from site to site, are unclear to users, fail to take account of stakeholder interests and may change on whim.

Protecting Post-Mortem Privacy: Reconsidering the Privacy Interests of the Deceased in a Digital World

Post-mortem privacy is not a recognised term of art or institutional category in general succession law or even privacy literature. It may be termed the right of a person to preserve and control what becomes of his or her reputation, dignity, integrity, secrets or memory after their death. While of established concern in disciplines such as psychology, counselling and anthropology, this notion has till now has received relatively little attention in law, especially common law. We argue that the new circumstances of the digital world, and in particular the emergence of a new and voluminous array of “digital assets�? created, hosted and shared on web 2.0 intermediary platforms, and often revealing highly personal or intimate personal data, require a revisiting of this stance. An analysis of comparative common and civilian law institutions, focusing on personality rights, defamation, moral rights and freedom of testation, confirms that there is little support for post-mortem privacy in common law, and while personality rights in general have greater traction in civilian law, including their survival after death, the primary role taken by contract regulation may still mean that users of US-based intermediary platforms, wherever they are based, are deprived of post mortem privacy rights. Having establshed a crucial gap in online legal privacy protection, we suggest future protection may need to come from legislation, contract or “code�? solutions, of which the first emergent into the market is Google Inactive Account Manager.

Post-mortem privacy 2.0: theory, law, and technology

ABSTRACT This paper builds on the general survey of post-mortem privacy set out in the author’s earlier work. The concept of post-mortem privacy is further developed both at a theoretical level (underpinned by theories of autonomy) and a doctrinal level (considering concepts such as testamentary freedom, and the protection of personal data). Finally, the paper looks at some current developments of technology (tech solutions for the protection of post-mortem privacy) and law/policy (work done by the US Uniform Law Commission on the Uniform Fiduciary Access to Digital Assets Act – UFADAA). The argument is that both of these regulatory modalities provide examples and illustrations of how post-mortem privacy can be recognised practically, especially in the online environment. The paper is, therefore, setting the scene further in this under-explored area, also aiming to set the basis for the author’s subsequent empirical research (attitudes towards post-mortem privacy, quantitative and qualitative).

Post-mortem social media: law and Facebook after death

Edina Harbinja, ‘Post-mortem social media: law and Facebook after death’, in David Mangan, Lorna Gillies, eds., The Legal Challenges of Social Media, (Cheltenham: Edward Elgar, 2017), ISBN 978 1 78536 450 1.

Virtual Worlds Players – Consumers or Citizens?

This article questions the preconceived notions that participants in virtual worlds are essentially consumers. Building on the existing scholarship around virtual worlds and notwithstanding the current character of virtual worlds, this paper explores aspects of End User Licence Agreements and notes the unfairness of their provisions, particularly the imbalance between user and developer interests governed by such contracts. It argues that the contracts cannot be regulated with consumer protection legislation, as interests such as property or intellectual property are beyond the scope of consumer protection regimes. Finally, recognising the phenomenon of constitutionalisation of virtual worlds, the article argues for stronger regulatory solutions in this domain, in order to strike a more appropriate balance between competing interests in virtual worlds.