Law Reform Commission to Review Treatment of Deceased’s Digital Assets

There is currently no clear or consistent answer in Australia to the question of what should happen to someone’s digital assets after they die or otherwise become incapacitated. 

In an attempt to provide a degree of clarity on the issue, the NSW Law Reform Commission is to conduct a review of laws that affect access to a person’s social media accounts and other digital assets after their death.

“In today’s hyper-connected world, an unprecedented amount of work and socialising occurs online, yet few of us consider what happens to our digital assets once we’re gone or are no longer able to make decisions,” explained Attorney General Mark Speakman.

“This is leading to confusion and complexity as family, friends and lawyers are left to untangle digital asset ownership issues, applying laws that were developed long before the arrival of email, blogs, social media and cryptocurrency,” he added.

As part of the review, the Law Reform Commission will explore whether NSW needs legislation to regulate who can access the digital assets of a person who has died or is incapacitated.

It will also consider relevant NSW, Commonwealth and international laws, including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted-decision making. In addition, it will scrutinise the policies and terms of service agreements of social media companies and other digital service providers.

“Some social networking sites allow for an account to be memorialised or handed over to an administrator after death, while others simply close the account,” Mr Speakman said. “The Law Reform Commission will also look at whether additional privacy protections are needed in situations where a person hasn’t made arrangements for anyone to take control of their social media or access their private emails.”

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