The impact of privacy policies and terms of service on a user's freedom of testation

Abstract

We live in a digital society where online accounts, social media websites and webbased email accounts form part of our daily lives. Through the use of these online platforms digital assets are generated which often carry sentimental or economic value. With the rapid growth of the digital world there are also new legal questions emerging such as: What will happen to these digital assets and accounts upon the user's death? The first step to take in answering this question is to define what is included in the phrase "digital assets." This is also the first problem that arises as the phrase has not yet been uniformly defined in literature or legislation, and neither has the South African legislator attempted a classification of what a "digital asset" would comprise. As a result, the concept of a "digital estate" that can be bequeathed is also undeveloped. In recent years some online service providers have put in place their own policy initiatives to try to regulate what happens to a user's account upon death. Google, for example, has begun to define its policies with regard to the right to access a deceased's account. Amazon.com on the other hand is a company that stipulates that the online account cannot be transferred and will ultimately end with the user. Regardless of the approach chosen by service providers, they ultimately limit the rights of the user. However, service providers require the user to accept a pre-drafted contract before an account is created, as a result the user is placed in an unequal bargaining position. In addition, there is a distinction between access to the account itself and access to the content of the account. The first problem a deceased user's heirs could encounter is being denied access to the account and/or its content. Lastly, service providers are maintaining that they cannot allow access to accounts or in some instances the content, as that would violate the privacy policy that was part of the agreement they had entered into with the deceased user. As a result of this lack of access and the non-transferability of digital assets, there could be real monetary loss, along with potentially significant and valuable intellectual property disappearing. Without legislation governing the position of digital assets after death, the service providers dictate how the assets are to be handled after the user has passed away. In this light, a user that agrees to the terms of an online service provider without due regard for the consequences of the agreement may well be limited in his freedom to bequeath his digital assets