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Do we need legislation on digital assets?

Over the objection of my staff, I manage my own social media accounts. When I post dad jokes or goofy selfies – or advise my Labrador, Ralph, on expanding his Instagram presence – they call me names like ‘‘Mark Tweetman”. But I persevere, because my social media accounts are important to me. If I’m communicating via social media, the posts should reflect who I am – warts, dad jokes and all.

I’m not the only one to view social media through this prism. Many Australians see their social media profiles as online representations of themselves. Social media profiles are personal; they’re little snapshots of who you are.

More and more often, the unique features of social media accounts – and other digital assets such as emails, blogs, cryptocurrency, photo and video files, music files and online clouds – are raising difficult questions in the event that the Grim Reaper cometh.

If I die, what will happen to my social media accounts and other property I have online? Will my family members be able to access and preserve them? Or should I just let my digital assets fade into their own digital afterlives? To help people answer these questions, I’ve asked the NSW Law Reform Commission (LRC) to review and report on access to digital assets upon death or incapacity.

In many cases, the service agreement you enter into with a digital service provider when signing up determines who can access your digital assets after death. Yes, the annoying pop-up with the small text that you didn’t read, but ticked a box to say that you had, can determine if your loved ones can access your digital life when you’re pushing up daises.

This can have unforeseen and, at times, tragic consequences. Imagine the amount of information in your email account – bank account details, share certificates, insurance policies – that your executor might need to administer your estate. Imagine if your lifetime of lovingly curated family photos was erased in the blink of an eye, or frozen in an inaccessible digital wasteland.

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