Benjamin Franklin famously said, ‘in this world nothing can be said to be certain, except death and taxes’. However, when it comes to our digital deaths the old adage is far from true. 

On 18 June 2018 the High Court gave judgment in Sabados v Facebook Ireland Ltd (2018 unreported). The judgment was in response to Ms Azra Sabados’ application for a Norwich Pharmacal order. However, unlike the Norwich Pharmacal applications which pass through the courts on a weekly basis, this application touches on some of the more difficult questions posed by the digital world – one which is increasingly occupied by both the living and the dead.

The application was brought by the deceased Mr Krupalija’s former partner, Ms Azra Sabados. Mr Krupalija was living in Sarajevo. He suffered a fatal heart attack in 2016. Six months after his death, his Facebook account was deleted. The difficulty was that Mr Krupalija’s loved ones did not know who requested that Mr Krupalija’s account be deleted by Facebook. Ms Sabados described this deletion in many ways as losing her partner for ‘a second time’. Ms Sabados described that loss as follows:

‘Lots of Mirza's profile included me and our travels, our photos, music he shared, some for me, some for friends, his profile stated that he was in a relationship with me - they could have dropped me an email to check [before deleting it]’.

The identity of the person who requested that the profile be deleted has not been revealed by Facebook, despite numerous requests by Mr Krupalija’s family and friends. Ms Sabados filed an application in the High Court seeking an order that Facebook reveal the identity of the individual who made the deletion request. In Sabados v Facebook Ireland Ltd, His Honour Judge Parkes QC ruled that Facebook must provide details of who made the request to delete Mr Krupalija’s Facebook profile. Judge Parkes held that Facebook is obliged to provide this information under a Norwich Pharmacal Order. Facebook has 21 days to respond.

The Digital Afterlife

This case touches upon some of the increasingly difficult problems thrown up by a digital world which is comprised of contributions from both living users and the legacies of decedents. This case brings to light the growing struggle of how both the law and businesses should address the interests of decedents and their digital remains.

The legal distinction between the living and the dead is crucial. However, inadequate provision is made for the legal transition between the living and the dead. In this respect, the certainty of death, as Benjamin Franklin viewed it, is conspicuously absent.

The legal difficulties created by this lack of certainty are only set to increase. Internet users generate 2.5 quintillion bytes of data each day. Although there is an increased focus on the importance of managing the data of the living, this does not extend to decedents. For example, the General Data Protection Regulation (GDPR) which has sparked months of debate, advice and countless email campaigns does not apply to the deceased, who do not constitute natural persons within the meaning of the GDPR.

Death extinguishes the possibility to act as a legal participant. However, the inability to perform an action, should not be a reason to discount the importance of creating a robust framework, or at the very least setting standards, to manage decedents’ data. Indeed, steps as simple as noting a decedent’s prior recorded expression of a preference could be used so that digital erasure or a digital legacy can be carried out by another. Although technology companies have attempted to address a framework for decedents, these frameworks as a whole are generally uncertain and unclear to both users and those close to them. Further, while those companies which have begun to consider this area should be commended, this issue has not made it on to many companies’ agendas.

The reality at present is that this issue is left unresolved in the majority of countries, including the UK, so that the terms of use of large scale private companies control the destiny of these accounts. Given the increasing importance of these accounts, and their contents therein to users and those close to them, a more robust legal framework is required to give certainty to companies and users alike. There are a variety of routes that could be pursued in order to grant greater legal certainty in this area including the continuation of an existing legal right attaching to the living, a new posthumous legal right which arises upon death, or indeed a legal right for a specified living person opposed to a posthumous right.

The answer to how we will be remembered after we are gone lies in the extra-legal combination of our persisting living image and the actions and interests of those who follow us. However, the law equally has a role in arbitrating the affairs and control of the remains of the dead. In order to give increased certainty to businesses, users, and those closest to decedents, greater thought must be given to the issue of how we treat the digital footprint that we leave behind.

Rebecca Keating is a Barrister at 4 Pump Court London.