The NSW Law Reform Commission will examine laws regarding access to a deceased or incapacitated person’s social media account and other digital assets. The NSW Law Reform Commission outlines that digital assets can include images, videos, emails, online banking accounts, cryptocurrency, domain names, blogs and online gaming accounts.

The move comes after concerns over what happens to digital assets after death or incapacitation in an increasingly connected world.

‘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’, Attorney General, Mark Speakman, said.

‘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’.

The Law Reform Commission will consider whether there needs to be any regulation to NSW legislation regarding who is authorised to access the digital assets of a deceased or incapacitated person. This review comes at a time where individuals are constantly trying to navigate older laws with ‘21st Century problems’.

Currently, Australian law does not directly address the issue of who gains access to a deceased or incapacitated person’s digital assets.

A variety of law will be reviewed, including relevant NSW, Commonwealth and international laws. Specific areas of law such as intellectual property, privacy, contract, crime, estates, wills, succession and assisted decision making will be considered, as these areas of law as they currently apply may not always be adequate in assisting in the interpretation of new legal scenarios such as what can be done with a person’s digital assets after death or incapacitation. Social media and other digital service providers’ policies and terms of services will also be reviewed.

‘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’.

The Law Reform Commission will be taking submissions related to laws affecting access to digital assets after death or incapacitation.

‘The issue of ownership of digital assets upon death cuts across many different areas of law, so diverse contributions from all parts of the community, including the legal profession, will be highly beneficial to the review’, Mr Speakman said.

If you would like to make a submission, please visit www.lawreform.justice.nsw.gov.au

Preliminary submissions will be accepted until Friday 1 June 2018.