I had been approached recently by the Khaleej Times with some very interesting questions related to digital assets. The below paints a full picture of the challenges posed from a legal standpoint.
1. Legal Challenges:
What are the primary legal challenges in treating social media accounts as inheritable digital assets?
The main challenge in treating social media accounts as inheritable assets is that most platforms do not recognize accounts as property. Instead, users only have a “license to use” their accounts, which complicates inheritance. The concept of ownership must also be addressed. That which is not owned, cannot be inherited
Other issues include the distinction between digital identity and property, as well as jurisdictional challenges since platforms operate globally, and each jurisdiction has its own statutory provisions regulating property /inheritance. Clear laws are needed to define whether digital accounts can be inherited as property or as part of an estate.
2. Privacy Concerns:
How can privacy concerns be addressed, especially when accounts may contain sensitive or personal information?
Privacy is a major concern, specifically as it relates to social media, as these may contain sensitive data. To address this, one must clearly define the following concepts:
- Consent: Must be clear. Wills may for example specify how digital accounts should be handled following one’s death.
- Digital Heirs: Platforms such as Facebook allow users to appoint legacy contacts to manage accounts posthumously.
- Data: Access to private data should be restricted unless explicitly allowed by the deceased.
3. Legislative Needs:
What specific regulatory or legislative updates might be necessary in the UAE to handle digital inheritance effectively?
While a person may include all assets in their will, as mentioned before, the definition of what is deemed an asset, must be regarded closely, and this goes hand in hand with the definition of ownership. As an example, in Latin, we may refer to a “thing/matter” as “Res” for example “Res Nullius,” (something belonging to no one and that has no ownership) or “Res Derelictae” (something that has been abandoned.)
We should also look at more definitions in property law, as definitions in any statute form the basis for the clauses to follow. Definitions such as “tangible” vs “intangible” (can it be touched, is it physical,) “movable” vs “immovable,” as well as “fungible” vs “non-fungible” (is it unique, or can it be replaced by another thing of similar value) should be regarded and clearly outlined under local laws.
4. Practical Implementation:
How would you envision the practical implementation of digital inheritance laws? For instance, should social media platforms provide mechanisms for this, or should it be handled entirely through wills and legal systems?
I believe that digital inheritance should involve both platform mechanisms and legal processes:
- Platform Mechanisms: Social media platforms should allow users to set legacy options (for example, appointing a digital heir, or choosing to memorialize, delete, or transfer accounts.)
- Last Testament/Will: Wills should include provisions for managing digital assets while allowing executors the relevant legal access.
- Digital Executors: Special digital executors may be appointed to manage the transfer of digital assets. Both platforms and legal systems need to cooperate to create secure, transparent processes for digital inheritance. How this is to be implemented remains to be seen.
5. Future Outlook:
Do you see digital inheritance laws becoming a reality in the UAE soon? What obstacles might delay their implementation?
The UAE is advancing in digital innovation, with initiatives like the DIFC’s Digital Asset Will for cryptocurrencies and NFTs. However, full digital inheritance laws may take time to materialise. If I’ve learned anything in my almost 30 years spent here, it’s that the UAE strives to accommodate people from all walks of life, with vastly different needs.
6. Scope of Digital Assets:
Should the concept of digital inheritance extend beyond social media accounts to include assets like NFTs, cryptocurrencies, or intellectual property stored online?
If definitions are clearly outlined, and the jurisdictional challenges are covered, this may be a possibility. Bridging the gap and enacting legislative measures to cover for the above is essential, however. Proper legal interpretation will be required before conceptualisation is to become a reality.
For further information or any queries, please contact our Wills & Estate Planning Lawyers in the UAE or email us at enquiries@jamesberrylaw.ae
Head of Wills and Inheritance