November 28, 2018

Life after death: social media in the afterlife

Dowson Turco Lawyers’ Nicholas Stewart sets out the rules for social media in the afterlife

My partner came to me upset the other night when he saw a Brazilian “friend’s” Instagram post and the comments beneath it. The post depicted a happy guy on a beach in Rio de Janeiro, but the comments told a sadder story. He had died and followers from across the world were grieving, posting their tributes to someone they either knew personally or connected with in the world of Instagram.

So what happens when your digital presence survives you? Do the Instagram gods terminate your account so that it follows you to the grave? No, they don’t. Your account stays alive and, unless you’ve granted someone else access (and they in turn delete your accounts) or Instagram has been notified of your death and has consequently “memorialised” your account, your profile will remain active but suspended in time, showing your most recent post as your last.

And it’s important to know that Instagram prohibits the transfer of profile rights to third parties - doing so breaches the terms of use. Instagram will also memorialise an account if it receives “valid” notice in the form of a report on the app with a link to a published obituary or other proof of death.

The effect of memorialisation is the account becomes frozen. Instagram will “try” to prevent references to the account from appearing on Instagram in ways that may be upsetting to the deceased person's friends and family, and will also “take measures to protect the privacy of the deceased person by securing the account”.

How is this possible? Well, the fine print to your Instagram account will tell you a few things such as:

(1) you own the content on your profile;

(2) you give Instagram a royalty-free, non-exclusive and royalty-free licence to do what it likes with your content;

(3) you cannot transfer your rights to any other person without Instagram’s consent; and

(4) Instagram can use, modify, copy, translate and create derivatives of your content whenever it likes and forever into the future.

Instagram’s terms of use also tell us that legal representatives for a deceased person (namely the deceased’s executor and trustee as appointed in their will) has the power to liaise with Instagram as to the account and may even seek the consent of Instagram to keep the account running without making it memorialised.

The upshot of all of this is it is best practice to have a will that not only deals with your money, real estate, shares and personal belongings, but also directs your executor and trustee to manage your social media accounts according to specific directions.

That means that you can give instructions to the executor/s of your estate to terminate your accounts upon your death or maintain your accounts posthumously for the purposes of continuing your online legacy. But if your executors are instructed to run the accounts in your afterlife (or whatever it is), they should bear in mind Instagram’s requirement that profiles not mislead, and it is advisable that your executor and trustee seek the consent of Instagram if your directions are to run the account without it becoming memorialised.

Contact our estates team for a free telephone appointment and quotes: 9519 3088 or [email protected]

Nicholas Stewart is a partner at LGBTI law firm Dowson Turco Lawyers and a director of Rainbow Families.

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