What Happens With Our Personal Data? Do We Need a ‘Digital Will’?

By Ema Sichmanova.

We are living in a digital age in which social media have successfully taken over the world. Checking our phone every day before going to bed and first thing in the morning has become the norm for many. While the discussion surrounding digital privacy and what happens to our data has become more prevalent in recent years, there are still people who do not realise the value of their data and the consequences of them being misused.

First and foremost, our data may be at risk of being misused at the exact moment we click the ‘I accept’ button and express our consent to a company’s terms and conditions. People may legally bind their personal data to practices they would never agree upon within an ordinary written contract. Yet, a 2017 Deloitte survey revealed that around 90% of people do not read the terms and conditions before agreeing to them. The reality is that T&C’s can be very long and complex; thus, it may take days just to read them. This leaves the consumer with a difficult choice as social media apps can be deeply integrated into our lives and not using them can result in us missing out on something vital. For example, career advisors like Elizabeth Garone in ‘Do you need a social media presence to find a job?’ warn that professional networking sites such as LinkedIn are becoming more important than a CV as the majority of employers check their potential employees’ social media as part of the recruitment process. In addition, others like Saige Driver in ‘Keep it clean: social Media screenings gain in popularity’ seem to suggest that almost 50% of employers would not hire a person with no online presence.

However, over the years, our data has grown more valuable. Companies realised that by obtaining and analysing people’s personal data, they can get to know their consumers and target their specific needs and preferences. Privacy International, a charity organisation which advocates for the right to privacy, has stated that data exploitation has also affected the way we vote as political parties now use personal data to create profiles on individuals depending on their political views and then target them with information (or misinformation) that will manipulate their views to the political party’s preference. Just how serious the misuse of our personal data can be was revealed in the infamous Cambridge Analytica incident. In this incident, Facebook allowed an app to not only collect the data of the user who downloaded the affected app but also the data of all their connections, resulting in Facebook obtaining the personal data of 87 million people, according to Vid Community in ‘How social media companies misuse your data’. Furthermore, the BBC has revealed that Cambridge Analytica has been linked to play a part in campaigns such as Brexit or Donald Trump’s presidency.

To better protect personal data and data privacy, in 2018, the EU enforced a new General Data Protection Regulation (GDPR). GDPR prevents companies from using overly complicated or unclear terms and conditions, giving the consumer the right to know for what purpose their data are being collected and used for as well as the right to erase their data from their database. While this regulation sets out the extent of data protection EU citizens are entitled to, GDPR only applies to living individuals. This brings out the question, what happens to our data after we die?

As GDPR does not extend to deceased persons, it is up to the national laws whether they have a provision covering this issue. Whereas digital possession, such as purchases of movies, music or e-books made through iTunes, Amazon Kindle, YouTube or similar platforms, cannot be inherited as we only purchase a license to use a product and that license expires when we die, digital data and information stored on our social media are not generally deemed in law to be an inheritable property; as a result, what happens with our data is dependent on national laws and our own actions. Many countries have already dealt with this novel issue and implemented legal solutions. In France, it is up to the individual person to let the company know what to do with their data after they pass. Meanwhile, the German Federal Supreme Court states that heirs may access the data of their deceased relatives while social media can be inheritable (similarly to physical goods). For example, in Italy, a person may be appointed to manage personal data of the deceased. And in Canada, Bacchi asserts that the deceased’s executor has the right to access the deceased’s digital assets. On the other hand, many countries like the UK do not have such provisions. As there is a lack of legal solutions available, companies have come up with their own solutions. Google and Facebook allow us to choose in the settings who will be responsible for managing our account or be given access to our data after our death. Further, Facebook and Instagram can turn the deceased’s profile into a special ‘memorialized’ page if requested by the deceased’s family.

Matthew Cantor from the Guardian revealed that Oxford researches are predicting that Facebook could have 4.9 billion deceased members by 2100. As Edina Harbinja, a senior lecturer in media and privacy law at Birmingham’s Aston University warns, this data are of economic value and such a vast database may be used in the development of artificial intelligence or other machine learning systems. As there is currently no set system of rules protecting our ‘digital afterlife’, the safest legal solution at the moment, as stated by lawyers at Turcan Connell, is to not forget to deal with your digital life in your will. For instance, when drafting a will, you may appoint a ‘digital executor’ and provide instructions on how you wish to deal with your online presence and which of your social media accounts you want to have shutdown.

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