At present there is no legal definition of digital assets in the UK. However they are usually taken to include information or data stored electronically, for example, in the cloud or online. Digital assets can be divided into those that are rights and interests in digital property, and those that are, in effect, digital records.
Digital property rights means intellectual property rights such as:
These have a monetary value and can be left by Will. Digital records on the other hand take the form of email accounts, e-books, photographs and videos and social media accounts such as Facebook or Instagram. Some of these may also have property rights (for example an email containing the manuscript of a novel).
The law relating to digital assets has struggled to keep pace with technology. On the death of an individual, their Personal Representatives have the benefit of any rights over the deceased's assets (including digital assets).
However, digital assets are subject to the standard contractual terms and conditions imposed by service providers (which cannot be varied or negotiated) when an online account is set up. Most provider's terms and conditions do not provide adequately for what will happen to digital assets after the death of the account holder. One solution is to enable executors or heirs to locate passwords and usernames, the difficulty is that this may breach user agreements.
The Law Society has called for individuals to include digital assets in their Will after a survey they carried out showed that 90 per cent of those writing Wills are not raising the question of digital assets with their clients.
The problem, however, is that even where provisions are included in a Will this is not always sufficient. For example where an individual wants to access a loved one's photographs stored on an iPhone, an application has to be made for a Court Order to allow this. It is hoped however that the law will evolve and there are signs that this is beginning to happen. Apple announced at its recent Worldwide Developers Conference the rollout of its Digital Legacy program which will include a pre-planning Apple function, called Legacy Contact. This has not been launched yet and so how this will change matters is yet to be seen.
The Law Commission is currently working on a 'digital assets project' and is considering how the law may need amending to keep pace with technological change. One area it is considering is whether non-tangible assets can be 'possessed'. At present possession is only possible in relation to physical assets.
This is a fast-moving area and it's important to stay up-to-date.