As their fourth congress took place in Spain last month, the Notaries of Europe lobby group (a collective of practising lawyers and legal academics who argue for greater legal consistency across the EU) have pushed for a new law forcing internet platforms to hand over data belonging to someone who has died or is in care. Sjef van Erp, a director of digital inheritance research at the European Law Institute, has called for greater uniformity of law regarding this matter.
The lobby hopes to influence the European Commission as it makes plans to propose legislation in early 2018 to help police collect e-evidence and data to assist in investigations across EU borders. Van Erp wants a separate law to address whether interested parties ranging from family and guardians to debt collecting bailiffs can access a person’s data, arguing that digital assets such as photos, music and videos should be treated with the same intellectual property rights as physical assets. However, there is scepticism from other lawyers who believe that bringing in a new EU-wide law to deal with these matters is too tricky, especially where existing legislation differs between Member States.
The position of Ailidh Callender, legal officer at NGO Privacy International, is that at present, with no legislation directly clarifying what should happen with the data of deceased users, controllers should respect the data protection principles under the General Data Protection Regulations and follow the same rules that apply to living people if the deceased user in question did not specify in a will what should happen to their online accounts.
Facebook’s current policy regarding the data of a deceased user is to give the user the option (when he or she is alive) to set their accounts to be “memorialised” or deleted upon their death. In the case of those to be“memorialised”, such accounts will be available for designated friends and relatives to view on the Facebook platform, but neither friends nor relatives will be able to log in to the memorialised account. However, Facebook has now allowed users to nominate a person as a “legacy contact” to manage their account in the event of the original user’s death.