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Access to digital records after death or incapacity to be reformed
Following the most recent meeting of attorneys-general in Melbourne, a national scheme led by the NSW government will enable access to a deceased or incapacitated person’s digital data and records.
Jasmine Siljic
Commonwealth, state and territory attorneys-general confirmed a consultation process that will decide upon the accessibility of social media accounts and digital records of a person upon death or incapacity, commented NSW Attorney-General Mark Speakman.
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These changes follow Mr Speakman’s call in 2018 for the NSW Law Reform Commission to reconsider if legislation is necessary to manage a deceased person’s online data. Previously, there were no uniform laws that dictate access to data when the owner dies. The recommendation encouraged a nationwide scheme to regulate the access of records upon death or incapacity.
“This is a complex area of law requiring great sensitivity to ensure any scheme strikes the right balance between access and privacy,” Mr Speakman said.
Access to social media platforms, including Instagram, Facebook, Snapchat, Twitter and TikTok, after the owner has passed differs from site to site. Whilst some accounts allow for a tribute post after the individual’s passing, the specific ownership of this data remains unclear.
“This is leading to confusion and complexity as family, friends and lawyers are left to untangle digital asset ownership issues,” he commented.
“Most people go online to work, to socialise and for entertainment, but few of us consider what happens to our digital assets once we are gone or are no longer able to make decisions.”
“When a loved one passes away, bureaucratic hurdles and legal uncertainty are the last thing families and friends feel like confronting, so we need clear and fair laws to deal with these 21st-century problems,” Mr Speakmen said back in 2018.
Legislative obstacles related to digital records can inhibit legal representatives from managing the affairs of the deceased or incapacitated person.
The targeted consultation will occur between August and October 2022, with the undecided outcome yet to determine what the new Australia-wide legislation will look like.
