Attorneys work toward extending wills to cover social media assets

By Ashley Barker
abarker@scbiznews.com
Published Feb. 5, 2014

Just as everyone should have a legal will designating where tangible assets will be distributed after death, law professionals are now encouraging everyone to also write a will covering social media ownership.

The legality of afterlife and social media was discussed during the sixth annual Law & Society Symposium, hosted by the Charleston Law Review and the Riley Institute at Furman last week.

Amanda Compton, associate professor of law at the Charleston School of Law, said digital assets should be treated just like regular, traditional property.

“Gone are the days of these simpler times, when you could just point to a filing cabinet and tell a loved one, ‘All my important documents are in there,’ ” Compton said. “We used to have letters, photos, videos and records. Nowadays we have email, blogs, YouTube for our videos and Instagram for our photos.”

She said all those things are stored on a password-protected online site, making it more difficult to access.

Jason Mazzone, a professor at the University of Illinois, College of Law, said it’s currently not clear who owns content on social media sites.

“Normally, individuals get to decide what happens to their property upon death,” Mazzone told the symposium’s guests via Skype. “If you spend a lot of time creating something, it’s natural to think you own it.”

Problems arise in the terms of service, which govern social networking sites and typically do not allow users to transfer ownership to someone else.

“There is no setting in Facebook, as it is currently configured, that says ‘If I die, then so-and-so gets to take over the account,’ ” Mazzone said.

The Uniform Law Commission is working on an act that will bring more clarity to the subject. The commission — a 122-year-old nonprofit organization manned by volunteer attorneys who are appointed by state governments — composes statutes for areas of law that could be enacted uniformly by all the states.

A committee, chaired by attorney Suzanne Brown Walsh, is drafting an act that will define digital assets and will allow a trustee the authority to access, manage, distribute, copy or delete digital assets based on a person’s wishes.

“We require the custodians to comply with a legitimate fiduciary request under the act. In exchange for that, we’ve immunized the custodians who comply for making that disclosure,” Walsh said.

Walsh said the act should be ready to be enacted by the states this fall.

Reach Ashley Barker at 843-849-3144 or @AshleyNBarker.

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