Department of Justice is now the Department of Communities and Justice.  Find out more >

Access to digital assets upon death or incapacity

In general, a person's digital property and electronic communications are referred to as "digital assets". These can include photographs, videos, emails, online banking accounts, cryptocurrency, domain names, blogs and online gaming accounts.

Digital assets can have significant personal, sentimental and even financial value. Permitting access to these assets after the person's death or incapacity is therefore essential. However, family members and fiduciaries can encounter significant barriers in acquiring access, largely due to the terms of service agreements between users and service providers.

In response to these barriers, there is an emerging trend of overseas litigation involving grieving families seeking access to their deceased relative's digital assets. Australian courts appear to have not yet considered these issues.

The NSW Law Reform Commission has been asked to review and report on access to digital assets upon death or incapacity. Our review will consider the current state of the law, developments that have occurred in other jurisdictions, and whether NSW should enact legislation to address the difficulties in accessing the digital assets of a deceased or incapacitated person.

The current state of the law

At present, there is no law in Australia that directly addresses the access of fiduciaries or family members to a person's digital assets upon death or incapacity. However, a number of laws may be relevant in this context, including:

  • Contract law. Service agreements often contain access restrictions and prohibitions on password sharing which can impede family members or fiduciaries from accessing a person's digital assets. These agreements may be enforceable under ordinary principles of contract law, even if a user did not read them or have knowledge of their terms.
  • Private international law. The proper or governing law of service agreements is determined according to the principles of private international law. If the proper law is that of a state without a statutory access scheme, family members and fiduciaries may be prevented from accessing a person's digital assets.
  • Criminal law. At the Commonwealth level and in NSW, the criminal law prohibits "unauthorised access" to restricted data held in a computer (Criminal Code 1995 (Cth) s 478.1; Crimes Act 1900 (NSW) s 308H). There is no additional requirement of an intention to commit another offence and no defence of "lawful excuse", so the scope of this offence is considerably wide.
  • Privacy law. Australian privacy law does not comprehensively protect the personal information contained in digital assets. The laws generally regulate the handling of personal and/or health information by public sector agencies (see, for example, the Privacy and Personal Information Protection Act 1998 (NSW)), not individuals or corporations, and some laws do not extend protection to the information of deceased persons (see, for example, the Privacy Act 1988 (Cth).
  • Property law. Property rights, such as the right to use an asset, to exclude others from using it, and to transfer it to another person, may exist in digital assets. However, these rights may be allocated to service providers under the service agreement and consequently, a digital asset may not constitute a person's "property".
  • Copyright law. The Commonwealth Copyright Act 1968 recognises copyright interests unpublished works, photographs, sound recordings and film recordings, and this interest lasts for 70 years after the creator's death (see s 33, 35, 85 and 86). However, service agreements often restrict the intellectual property rights of users, which can also affect the entitlements of the user's successors.
  • Succession law. NSW succession law states that a person may dispose of property in their will to which they are entitled at the time of their death (Succession Act 2006 (NSW) s 4). However, whether a person owns a digital asset as their "property", and whether they are entitled to it at the time of their death, typically depends on the terms of service agreements.
  • Estate administration law. The NSW Probate and Administration Act 1898 imposes statutory obligations on executors and administrators to identify, collect and distribute a deceased person's assets. Executors and administrators therefore need access to a person's digital assets even if they are not heritable under a will or the rules of intestacy. However, they may be denied access by the terms of service agreements.

Overseas developments

The growth of digital assets has outpaced state and federal legislation in Australia. However, significant legislative developments have occurred overseas.

In the United States, the Revised Uniform Fiduciary Access to Digital Assets Act (2015) ("RUFADAA") has been enacted by most states. The Act gives people the power to plan for the management and disposition of their digital assets in the same way that they can plan for their tangible property. However, the definition of "digital assets" only includes electronic records in which an individual has a property right or interest (s 2, "digital asset").

Under the RUFADAA, the person's instructions, either online or in a traditional estate plan, have priority over the service agreement. However, if a person has not provided any direction, the service agreement will apply.

If the service agreement does not address fiduciary access, then the default rules of the RUFADAA apply.  Generally, a fiduciary will have access to a catalogue of the user's communications, but not the content, unless the user consented to the disclosure of the content.

In Canada, the Uniform Access to Digital Assets by Fiduciaries Act (2016) ("UADAFA") provides a stronger right of access than the American Act. Any fiduciary of an account holder has default right of access to the digital assets of the account holder (s 3). "Digital assets" includes any type of electronically stored information, including content stored on a device or uploaded on a website (s 1, "digital asset"). However, a fiduciary's access to an asset does not entitle the fiduciary to own the asset or otherwise engage in transactions with the asset.

In the Canadian Act, the terms of the instrument appointing the fiduciary determine a fiduciary's right of access, rather than the service provider. Notably, a provision in a service agreement is unenforceable if the provision limits access contrary to the Act (s 6).

Unlike the American Act, the Canadian Act has a "last-in-time" priority system. This means that the most recent instruction takes priority over any earlier instrument. Therefore, a person who already has a will, but nominates a family member to access their social media account after their death, restricts their executor's rights under the will.

The case for reform in NSW

Due to the prevalence and value of digital assets in present society, and the uncertainties within the current state of the law, legislation may be needed in NSW to address the practical difficulties in accessing the digital assets of a deceased or incapacitated person.

NSW should aspire towards a clear and effective legal framework of access to digital assets that will address the current problems here, and influence change in other jurisdictions.