Who Can Access My Facebook After My Death?

We are living two lives, one in tangible form and the other in digital persona. According to statistics, 66.8 percent of the population in Canada accessed social media in the year 2019. It is expected that by 2025 the percentage would increase to 81.5 percent. Most Canadians have social media accounts on Facebook, Instagram, and others. But who owns our digital accounts post our death? Does post-mortem privacy prevent the right to access these digital assets?

Post-mortem Privacy

There have been several instances where the parents of a pre-deceased child wish to use or see the content of the deceased’s social media account.  Does accessing this information violate the post-mortem privacy rights?

In Canada, for private sectors, personal information cannot be disclosed without one’s knowledge or consent under the Personal Information Protection and Electronic Documents Act (PIPEDA). The Act is applicable when a Canadian’s personal information is collected even by an overseas company. In Lawson v. Accusearch Inc. (cob Abika.com), 2007 FC 125 (CanLII), the federal court observed where there was evidence of a sufficient connection between the organization’s activities and Canada, PIPEDA was applicable.

The personal information of an individual who has died at least 20 years ago can be released. However, if the individual died for less than 20 years, only the executor or administrator of the estate or liquidator of the succession may request the personal information. The access to such information shall only be to fulfill their legal responsibilities. Thus after analyzing provisions of the PIPEDA and its applicability, it seems that in most cases, the relatives of the deceased cannot be granted access to their personal information. The grant shall be limited for legal purposes and may not allow a parent or relative to access private information such as social media such as passwords, photographs, bank account details, and social media history.

Service Agreements and Social Media Accounts

Another crucial aspect to consider is the terms of the service agreement between social media platforms and deceased account holders. The platforms may categorically deny transfer or use of the account by anybody except the holder.  Facebook provides two options to its users, upon one’s death, the account may be deleted or ‘‘memorialized”. The account holder may choose this option in advance via profile settings. When an account is memorialized then the contents of the account remain unchanged. The friends can write memoirs on the timeline of the deceased. The account holder may choose a “legacy contact” who may manage certain aspects of the profile after the account holder dies.

Google allows “Inactive Account Manager” (IAM), a tool through which the account holder can grant a designated person access to part of their account after a period of inactivity of their choice. The account holder can delegate significant powers to the designated person. Many platforms such as Linkedin and Twitter deactivate the account. 

Privacy of Others Account Holders

It is noteworthy that the information linked to one individual can always intersect with the privacy rights of other individuals. Chat history with other social media users, photographs, and videos are examples of such interactions with third parties may be involved. Therefore, when access is granted to a deceased individual’s representative, it is vital to protect the privacy rights of other people who were associated with the deceased. This may open pandora’s box. Determining the sensitivity of information and contents to be shared thereof would be a herculean task. The social media platforms are under a fiduciary relationship to protect the private information of the other users.

Digital Assets and Legislative Overview

In 2016, the Uniform Law Conference of Canada (ULCC) adopted model legislation i.e. the Uniform Access to Digital Assets by Fiduciaries Act (“DAFA”).  DAFA  permits access to digital assets to those who have a fiduciary relationship with the deceased. Section 1 of the DAFA defines a “digital asset” as a record that is created, recorded, transmitted, or stored in digital or other intangible forms by electronic, magnetic, or optical means or by any other similar means. Thus digital assets include but are not limited to the files stored on digital devices, online accounts, social media passwords, website contents, digital photographs, and videos.

DAFA has not been adopted by all provinces in Canada.  In Alberta, digital access is allowed to the personal representative of the deceased. Saskatchewan recently allowed the fiduciary access to the administrator of the deceased’s account holder and trustees as well. On 29 June 2020, Saskatchewan enacted The Fiduciaries Access to Digital Information Act. Thus, allowing the fiduciary access to the digital assets of a person who passed away. The Act creates a default rule that the fiduciary will have access to digital assets. However, the default rule can be altered by the will, estate administrators, court order, power of attorney, trust, etc.

Conclusion

People are gradually acknowledging the significance of digital accounts and are including digital inheritance in their wills. Although this estate planning would honor the account holder’s wishes, it cannot be drafted in alienation. The effects of service agreements cannot be ignored while considering the transfer of this legacy.

Permitting access to digital accounts to fiduciaries may be against the wishes of the deceased. The social platforms must be legally mandated to record the wishes of the account holder in advance. Instead of wrap agreements, the account holders must be explained the consequences of their decision. It is significant to protect the sensitive information of others gathered by that individual. Only limited access should be granted to the fiduciaries initially, which may be increased upon getting consent from shared contacts.

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