The Legal Challenges of Social Media
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The Legal Challenges of Social Media

Edited by David Mangan and Lorna E. Gillies

Social media enables instant access to individual self-expression and the sharing of information. Social media issues are boundless, permeating distinct legal disciplines. The law has struggled to adapt and for good reason: how does the law regulate this medium over the public/private law divide? This book engages with the legal implications of social media from public and private law perspectives and outlines how the law, in various legal sub-disciplines and with varying success, has endeavoured to adapt existing tools to social media.
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Chapter 9: Post-mortem social media: law and Facebook after death

Edina Harbinja

Abstract

This chapter discusses issues surrounding the transmission on death of content created on Facebook. Social network accounts and content are categorised in this chapter as a type of digital asset. The first issue that the chapter briefly looks at is the nature of this content, ie whether it could be considered property or copyrightable content or if it is mere information and personal data. The focus is on the unpublished content, as the transmission of published works protected by copyright is straightforward and not digital asset specific. Second, the chapter analyses the provisions of terms of service of Facebook in relation to its treatment of ownership and transmission of content on death. The chapter finds contradictions between relevant provisions within the same provider’s terms of service. These terms, especially in the case of Facebook, are complex and scattered, and they do not offer an informed and meaningful choice for their users. There have been some improvements recently, however, with the introduction of Facebook Legacy Contact. The chapter will critically evaluate this technological solution and offer some suggestions for its improvement. Third, the chapter adopts a novel approach, using post-mortem privacy as an argument against the default transmission of social network content on death without the deceased’s content. This phenomenon, along with the non-proprietary nature of the content, should preclude the default transmission of social network accounts according to the law of intestacy. Finally, recognising the issues of access to this content, post-mortem privacy, and conflicts of the deceased’s interests with the interests of his heirs and friends, the chapter suggests that combining technology and law as regulatory modalities in this case would produce the most nuanced results from the users’ perspective. Keywords: digital assets; post-mortem privacy; copyright in social networks; social network contracts; death online; Facebook Legacy Contact

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