For many years, executors and next of kin have struggled to access information held on a deceased individual's smart phone and other digital devices. A prime example was Nick Scandalios who had to go to court to gain access to his husband's family photographs on his iCloud account. We outlined some of the problems in an article last year.
It has been an often insurmountable problem, as certain service providers have made it clear that they will not permit access to a deceased's information without a court order. For this reason, we watch with interest as a private member's bill to remedy this exact problem has just gone through the second reading stage in the House of Commons. The bill outlines the key issues and proposes to go some way towards "unlocking and finding a way through that labyrinth" by providing next of kin an automatic right to access a person's digital device.
The second reading is currently "in progress" and represents the first opportunity members will have to discuss and debate the bill. It will be interesting to see whether some of the obvious issues are raised at this point, including:
- Some people may not wish their next of kin to have access to certain accounts. Would it be an "opt out" programme? How do you protect those people who have challenging relationships with their next of kin?
- Would it be "next of kin" or the executors who would have access? How does this dovetail with the executors' duty to administer the estate? The motion suggested that the bill, once passed, would act completely independently of any will (or intestacy).
- Do service providers whose terms specifically state that access terminates on death have sufficient lobbying power to prevent this bill from progressing?
The bill seeks to address an issue which is sorely in need of consideration, but whether it does so in a sufficiently practical and sensitive way is another question. Even if the bill does pass, it may well be substantially different from its current, first iteration. We watch this space with interest.
a right of access to the digital devices of a dead or incapacitated person to their next of kin