Applying To Access A Deceased’s Digital Assets

As we move to a digital world a person’s estate becomes more than just their tangible assets and personal property. Digital assets cover a variety of belongings, including photographs, music, social media accounts, and those more financially based being betting accounts and cryptocurrencies.

Unlike tangible assets and personal property, digital assets receive far greater protection from the Data Protection Act 2018 (DPA) during a person’s life. Whilst the DPA does not apply after a person’s death, the passing of digital assets on death can be difficult unless otherwise directed in a deceased’s Will.

The difficulty often lies in the terms and conditions of the digital asset in question, for example, a person’s iCloud account will be governed by Apple’s terms and conditions. These terms and conditions will often remain in place on a person’s death, unless stated otherwise within the terms. It is common for most terms to prevent the transfer of ownership or access from another person, unless this has been consented to by either the user, the provider, or both. If the user is required to provide consent and has already died, this is no longer possible.

Rachel Thompson v Apple

When a person has already died and the provider is unable to provide access or consent to it being granted, the person seeking access to those assets will need to obtain leave from the Court. One of the leading cases in this respect is Rachel Thompson v Apple, whereby the Claimant sought to obtain access to her late partner’s iCloud account in order to retrieve the photographs he retained. The Court granted an order allowing the Claimant access and in doing so suggested changes were needed to clarify the position and make the procedure simpler for those requiring access. Despite Rachel Thompson v Apple being heard in 2019, it appears that little has been done to simplify the process as the family of the pop star, Steve Strange, now face a similar battle.

Comment

It is expected the Law Commission will be reviewing the law in respect of a person’s digital assets. As it stands, the law surrounding digital assets is very much a grey area but case law suggests the Courts are willing to grant orders permitting access, however, the time and costs involved can be significant. For those financially based digital assets, the costs may be necessary in order to properly wind up the deceased’s estate.