English Law Commission on Transmission of Digital Assets On Death

Transmission of Digital Assets on DeathNameInstitutional AffiliationDate
INTRODUCTION
In the emerging world that is surrounded by new technological advances, there are numerous disputes over the transfer of digital assets upon the death of an individual. In this case, the digital assets can be either of economic value, or they can also be called their dignitary, personal or they may be of non-economic value. In this world of ours, it is very difficult for an individual to live or exist without relying upon, referring to or communicating through the digital assets. Many people have invested on the internet, and as the days move, the internet is becoming the main storage of our financial and personal lives, and it does not seem to be stopping shortly. Digital assets can be used to refer can also be defined as any electronic record that can be used to gain access to online accounts, photographs, documents, domain names, social media accounts, domain names and even emails.[Sherry, supra note 16, at 210; see also Hopkins & Lipin, supra note 93, at 64 (emphasizing digital assets that have been more traditionally valued, such as customer lists).]
English Law Commission on Transmission of Digital Assets On Death
Different legislations try as much to address the issue of transfer of digital assets upon the death of an individual, but they are faced with some challenges that hinder their effectiveness. One of the common challenges is that many companies that offer online services would have formulated their contracts in such a way that the transferability of the rights of the user to another person is limited. One of the common instances that have been used in this context is the case of Adam. Adam, who is a specialist in Music closed his favorite album store and as such the loyalty that he had to the disc albums lost. He then makes a turnaround and decides to invest in the purchase of digital songs from iTunes. Within a short period, the venture of Adam becomes successful, and he then builds a collection of approximately ten thousand songs. As a way of ensuring that her daughter enjoys his music one day, he gifts her daughter a sense of legacy on his birthday. He goes ahead drafts and executes a will that states that the daughter will become the owner of the iTunes collection once he dies. He later dies, and the executor of the will tries to gain access to Adam's iTunes account and realizes that Apple has already terminated it. The Apple Company cites that according to the terms and conditions, they granted Adam a non-transferable license on his account and as a result, the daughter is unable to own any rights that pertain the iTunes account that his father owned. There are so many individuals just like Adam, who are unaware of the limited rights that are associated with the digital assets that they own.[See The Law Commission Working Paper No. 110, Computer Misuse, 1988; The Law Commission, Breach of Confidence, Report on a Reference Under Section 3(L)(E) of the Law Commissions Act 1965, Report No.110] [Compare iTunes Preview, APPLE, https://itunes.apple.com/us/album /confessions/id386153476 (last visited Dec. 12, 2016) (pricing Usher’s Confessions mp3 album at $10.99), with BEST BUY, /site/confessions-special-edition-cd/6845088.p?sku Id=6845088 (last visited Dec. 12, 2016) (pricing Usher’s Confessions CD album at $5.99).]
One of the economic assets that can be owned by an individual are the domain names. Some domain names may have a good reputation due to branding, and as such, it is crucial to the profitability of business. In an instance where the business belongs to a family, you cannot at all talk about inheriting the domain name only; it is about the person who will be getting notification emails that will inform them of the need to re-register the business or renew the license after it has expired. Those are some of the controversial issues that surround the issue of inheriting digital assets after the death of an individual. Most of the outlet businesses operate from eBay and as such one is supposed to have an account which has the login credentials. The login credentials can include the username and password or any other login information. There are also virtual assets that refer to game playing features that are owned by people. There is still a legislation that guides such assets on how they should be put on sale, how they are a presentation of the labour that people went through and they are earning from such games to determine their value and how they can be transferred to another person. Besides, there are photos, blogs and written texts such as poems within the social media networking sites, profiles of celebrities or those people who die and they were successful when they were alive can be of great value.[In Re Ellsworth, No. 2005-296, 651-DE (Mich. Prob. Ct. 2005). See discussion in Baldas T. “Slain Soldier’s E-Mail Spurs Legal Debate: Ownership of Deceased’s Messages at Crux of Issue”, 27 Nat’l L.J. 10, 10 (2005)]
Reforms to Be Carried Out
In the different types of cases, there are legal issues that surround access, control, ownership and even transmission are complex, and the way in which the different legal system that has been put in place to handle such issues handle the matter differ from one state to the other. Different existing laws try to regulate the issue in the various legal systems partially. Such ways through which the transmission of digital assets after death are regulated include the use of the name of wills, testament law, succession, probation and many other forms. Succession law is made up of two distinct parts where on one end it states what should happen when a will has been made by the deceased which is referred to as testacy and what should happen when no will was left behind by the deceased (intestacy). There is also another branch of the law that regulates the procedure that can be used to wind up the estate of the deceased and then distribute the assets to the heirs. One of the features of succession laws is that they are localized and as such the regulations about the transmission of digital assets upon death vary widely in the different nations say United States, Scotland, England and Wales which are the standard jurisdictions that exist.[Edwards L Law and the Internet (3rd edn, Hart, 2009), ch 21, pp 687-690] [See REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT § 4(b) (UNIF. LAW COMM’N 2015), /shared/docs /Fiduciary%20Access%20to%20Digital%20Assets/2015]
The law of wills that is found in England and Wales is a product of the 19th century, and the main statute is the Wills Act 1837 that specifies the circumstances when a person is able, or they can inherit assets after a person has made a will. As mentioned earlier, the law has become outdated, and there is a need to ensure that the law is modernized to make sure that it meets the various issues that are arising. As such, it will be reflecting the changes that are taking place in the world regarding technology, medical understanding and many other aspects of change that have taken place.[[2012] EWHC 2952 (TCC).]
In analyzing the reforms that should be brought to the law reform about the transmission of digital assets upon death, there is one question that arises; how far do the digital assets fit well into the existing legal paradigms as complex as they are and whether we need a new law to address the issue. Two main issues make the matter to be more complicated. To begin with, the assets can fall into the estate of the deceased only when they are property. The property law is an established branch of the private law, and it is marked by modern legal conceptions. Such conceptions include the intellectual property (IP), data protection (DP) law, privacy law and information law. Property is always transmitted to the heirs upon death. There are some of the items that we cannot completely own since they belong to all of us. Such items can include the air and high seas. Just like in the digital assets, some items cannot be counted as property. For instance, if someone is planning to buy a future stock which is held by an employee when they die. It may or may not convert into an item in the probate entry depending on the legal system and also the exact details. It may also apply to a future right to sue if they have been dismissed from their employment without in the cause of their lifetime. In many of the legal systems, such claims can be viewed as personal and as such the property may not transmit to the heirs.[5 See The Law Commission Working Paper No. 110, Computer Misuse, 1988; The Law Commission,] [Ibid. p. 768]
Legal battles always face the legislation that is advocated by the English Law Commission on the transmission of digital assets or governing access to the digital accounts after the death of the owner or when one has died. The legal battles arise when the service provider does not want to cooperate. A large number of companies in England and Wales are more concerned about the legislation. As a way of ensuring that they do not meet the extra expenses, some of them have come up with various user privacy agreements that make it difficult for one to gain access to an account of someone after they have died or they have been incapacitated. The online service providers have fear about the business costs that they may incur and also having difficulties in making decisions about the person who should gain access to the personal accounts of the deceased. Some of the people argue that the privacy disputes on the issue of gaining access to the digital assets are misplaced. One of the authors in this matter argues that even though the privacy of the account holder is cited as a factor that weighs against disclosure, the privacy rights are in certain cases considered to cease after the death of an individual.[In Re Ellsworth, No. 2005-296, 651-DE (Mich. Prob. Ct. 2005). See discussion in Baldas T. “Slain Soldier’s E-Mail Spurs Legal Debate: Ownership of Deceased’s Messages at Crux of Issue”, 27 Nat’l L.J. 10, 10 (2005)] [Darrow J. and Ferrera G. “Who Owns a Decedent’s E-Mails: Inheritable Probate Assets or Property of the Network?” N.Y.U. J. Legis. & Pub. Pol'y Vol. 10 (2006) 281, p. 308, Available at SSRN: http://ssrn.com/abstract=1698907]
The recommendations that are proposed by the English Law Commission must take into account the role of undue influence and knowledge and also approval. The reforms must be based on the fact that there is the need to protect testamentary freedom. As a way of ensuring that it has been achieved, there is a need to create a balance of two main objectives. The law must be reformed in such a way that it provides adequate protection to the vulnerable testators by making sure that someone can challenge the wills that do not appear to reflect the freely made wishes of the testator. Such a situation may arise when the testator is incapacitated or if the beneficiaries are opportunistic individuals...