ELI Succession of Digital Assets, Data and other Digital Remains

Background

Succession of Digital Assets, Data and other Digital Remains are increasingly important considerations in succession, estate planning and estate litigation, as more people conduct their lives online and accumulate valuable digital assets, accounts and data. Legal professionals report issues in dealing with these cases and advise their clients in the estate planning process. Technology companies also report a lack of clarity when it comes to accessing accounts and data on their services. A growing number of business models aim to exploit the lack of rules in this area and offer technological solutions (eg digital estate planning tools, chatbots, password managers, etc), often with the risk of legally inefficient outcomes, resulting in legal uncertainty. Citizens in the EU struggle to navigate complex terms of service, both when attempting to plan their own estate distribution and when trying to access and manage the estate of their deceased family members and friends. Given the ever-increasing volume and value of digital legacy, as well as the conflicts and issues mentioned, there is a pressing need to regulate and legislate this vital area that intersects numerous areas of law (succession law, property, contract, IP, data protection, jurisdiction, personality rights, criminal law, etc).   

The digital estate includes digital assets, personal data of the deceased, and potentially other emerging digital remains. In all these areas – assets, personal data and emerging types of digital remains – legal challenges have arisen. Key challenges include defining and classifying these assets, remains and data; determining who has the legal right to access and manage a person's digital estate after their death; ensuring data security; and protecting the dignity and privacy of the deceased during data transfer to the entitled persons. Currently, the fate of the deceased's digital data is mainly in the hands of technology companies, which dictate the applicable regime through their terms and conditions. In addition, some of these companies are located abroad and require translations of heirs' and death certificates, thus creating red tape. There is also the issue of the recognition and acceptance of foreign certificates of succession and other relevant documents.

Generally, the law of most Member States of the European Union expressly or implicitly recognises that digital assets are part of a person's estate and can be inherited by their beneficiaries. However, several legal and technical challenges must be overcome to ensure that digital assets can be transferred to the appropriate parties after a person's death. Issues relating to these barriers may have to be addressed and overcome through other areas of law in the scope of this project, including privacy and data protection, contract law, IP, etc. There is also the question of who the appropriate party is for the purpose of a particular type of asset/data/remain, an issue which may not necessarily be solved (only) through inheritance law.

Aim

The project aims at drafting model law/rules to harmonise key provisions on the definition of digital remains, access and inheritability, and data protection issues. The project will help define and distinguish different types of assets, remains and personal data, define their inheritability and transmission, as well as examine existing rules on applicable law, jurisdiction, data protection and other relevant areas of law, with a view to ascertaining their suitability for this field, failing which proposals may be put forward.  Key target audiences include: EU and Member State legislators and governments, courts, legal professionals, technology companies and service providers, professional associations, civil society, and citizens.

Outcome

The main outcome of this project will be model Law/rules (and principles, for issues/areas where a model law is not suitable) aimed at influencing European legislation on the definition, scope, entitlement and access to the digital assets and data of a deceased person. These provisions would, if legislated, prevail over the contractual agreement between service providers and the deceased and harmonise the data protection standards in this field.