Daniel E. Smith, Attorney
It seems that these days everyone is on Facebook. We use it to keep in touch with other people and share information, no matter how mundane or personal it may be. As my colleague Nanette Cruz notes in her recent blog post, Facebook users are beginning to feel the legal impact of status updates or photos. But do they fully understand how much of their profile is properly “theirs”? Once they post information or photographs on Facebook, who owns it? And more importantly, when a user dies, does their online profile die as well?
According to the Facebook Terms of Service, users can manipulate how their content is shared. But once you click “share”, you grant Facebook the “non-exclusive, transferable,…royalty-free, worldwide license” to use your intellectual property, which includes photos and videos. Intellectual property, in short, is an intangible, unique thing you own. Usually, as the word “intellectual” implies, these products are from your mind, such as a song, a poem, or a photograph. Many Facebook users just post photos of events or their friends and family. But others may use Facebook as a means to promote their artwork or music, and this is when ownership rights need to be clarified. Facebook’s Terms state that they can’t make money from the property and their property rights end once the user takes the content down, but that doesn’t mean Facebook can’t share your active content without getting your permission first.
Social media sites rely on a user’s individual thoughts, so could profiles in general be considered as intellectual property? I don’t think it is unreasonable to say so. If users are given legal control of their profiles and content, do they also have the right to say what happens to it after they pass away? What about the active content on the profile? Thinking about what to do with your belongings after you die can be a depressing subject. For that reason, some people avoid the subject until it’s too late. But even the most proactive people who write a will early on in life may not think about what happens to their online accounts after death.
Facebook has thought of a solution for this also. The family and friends of a deceased user have two options: they can memorialize the account or request that it be deactivated. Unfortunately, algorithms don’t take into account the emotional trauma that a survivor experiences when they see a box in their mini-feed reminding them to “reconnect with” someone who has passed away. The best way to avoid these technological oversights is to notify Facebook.
Family and friends can not, however, get the user’s login information. Even leaving specific instructions to do so in your will may be a grey area at this point. Because this issue is emerging the legal world, Facebook may be reluctant to give up a user’s information without very clear language. If the deceased person used Facebook to promote themselves as an artist or musician, then their property rights could be compromised by this barrier. Although Facebook strives to protect each user’s privacy, it can create a problem when a user’s loved ones want to protect property rights after their death. Family and friends wouldn’t be able to log in and save the content if the user had not made their wishes explicitly known in a will.
The law can’t always keep up as technology and cultures change. Laws may overlap and contradict with each other. In Facebook’s case, these laws include a user’s right to privacy and to own their intellectual property. Until more specific rules are developed, individuals can protect their rights and interests the old fashioned way: by planning an estate and having their wishes written in an official document. Other attempts at resolving this situation could lead to painful reminders that your loved one–and their creative legacy–has been lost.