Death and digital assets: Ministers to consider law reform

Written by Sam Trendall on 26 September 2022 in News
News

MoJ minister claims government is awaiting recommendations from advisory body, as private member's bill continues passage through parliament

Credit: Pexels/Pixabay

Ministers are to consider possible legal reforms regarding digital assets and how they can be accessed and inherited after their owner has died.

Earlier this year, Democratic Unionist Party MP Ian Paisley introduced a private member’s bill which – if it became law – would give the next of kin of a dead or legally incapacitated person the right to access their digital data. Currently, such access requires an explicit provision in the will or other legal instruction made by the deceased prior to their death.

This means that, after someone dies, data or assets stored in their online accounts or cloud storage facilities is often rendered inaccessible – which has led some to launch legal action against digital platforms in a bid to gain access to a loved one’s data.

This may include personal files with sentimental value, such as photos or messages. But, according to Paisley, there are also assets worth a cumulative total of £25bn that are currently “held online in password-protected cloud storage solutions such as iTunes and social media account”.

In a recent written parliamentary question, Labour MP Dan Jarvis asked “what steps [the Ministry of Justice] is taking to improve access to digital assets for next of kin where they are not reference in the will of the deceased”.

In response, Rachel Maclean, a minister of state at the MoJ, said that, in the coming months, government intends to consider reform proposals made by the Law Commission as part of two ongoing projects: one dedicated to the modernisation of the law regarding wills, and another focused on updates to legislation regarding digital assets.


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“The government will consider recommendations made in respect of accessing digital assets after a person has died and inheritance questions for such rights, in the light of two forthcoming law reform reports being undertaken by the Law Commission,” Maclean responded. The first of these is the law reform project on digital assets which is exploring how the existing law of personal property applies to digital assets…. The second is the Law Commission’s law reform project reviewing the law of wills which will contribute to the evidence base around the transfer of digital assets on death.”

The Law Commission is an independent public body dedicated to advising on legal reform. 

With the Wills Act of 1837 still providing much of the applicable legal framework, the commission indicated that “the law of wills needs to be modernised to take account of the changes in society… [including] the emergence of and increasing reliance upon digital technology”.

The advisory body’s work on digital assets, meanwhile, starts from an understanding that “certain aspects of the law now need reform… [to] ensure that digital assets benefit from consistent legal recognition and protection, in a way that acknowledges [their] nuanced features”.

After being paused in 2019, the wills project is back underway is it currently at the policy-development stage, during which the commission will draw up any recommendations for how and where it believes the law needs to be reformed. Any such recommended updates will be accompanied with instructions for government’s lawyers “to draft a bill that would give effect to our recommendations”.

The digital assets project is still collecting responses for a consultation exercise that closes on 4 November. Responses submitted will then feed into the development of policy and the recommendations that will, ultimately, be submitted to government.

The bill put forward by Paisley is currently undergoing its second reading in the House of Commons. Introducing his proposals to other members earlier this year, the DUP MP said that “most people are under the impression that they own their online content – they do not”.

He added: “Many forget to make provision for access to their content material in their will, or to share their passwords and access codes with their loved ones. Of course, many do not have a will, and young people, especially, fall into that category. Much precious material, sentimental and otherwise, can therefore be lost forever.”

 

About the author

Sam Trendall is editor of PublicTechnology. He can be reached on sam.trendall@dodsgroup.com.

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