Dying intestate in the digital age: who takes control of your data after you’re gone?

Introduction

In 2013, the family of a 72-year-old Canadian woman, Peggy Bush, had petitioned Apple in a bid to access the iPad of her late husband who had left behind years of memories together as a family and a favourite card game that he played every day on the iPad. Apple was clear- either get a court order, or get nothing. The family obliged, and spent months and a lot of legal money to get a consumer tablet. This was not envisaged in any statute. It had not been ruled on before in any court. The family had prevailed but because they could afford to fight.

People all over the globe continue to accrue what legal scholars are increasingly referring to as a digital estate, an intangible, yet frequently economically and emotionally valuable, collection of accounts, data, currencies, and works of creative content that is fully online. MoneyEd YouTube channel that brings in monthly revenue. A wallet of life savings in cryptocurrency. Two decades of individual email in Gmail. An entirely Instagram-based business. In most jurisdictions, and in India, the law is silent on what happens to the account when the account-holder dies.

The stakes of inaction by the legislature are enormous with more than 900 million active internet users as of 2018,^[1] a cryptocurrency market, which has seen retail investment in excess of ₹1 lakh crore prior to regulatory action, and an entire generation of creators, freelancers and entrepreneurs whose livelihoods and income solely exist online.^[2] The result has been a legal vacuum, that has been silently occupied on an ad hoc basis by the terms-of-service agreements of technology corporations. Without law, Google, Meta, and Apple have been in practice the succession authorities of digital property in India by default.

This blog explores whether digital assets are legal or not, the loopholes that are vital in Indian succession and data protection law, the emerging comparative frameworks around the world, the fault lines that law fails to address, and the reform agenda that India desperately needs.

Mapping the Digital Estate: What Dies With You?

The Digital Asset Spectrum

When presenting someone with the question of what they own, the idea of a house, a car, a bank account would come to mind. Not many people would consider their Gmail inbox. However, to an increasing number of Indians, the digital aspect of their estate is not only an addition to it, it is the estate.

Digital assets are of three categories. First, assets that have a direct and measurable economic worth include cryptocurrency holdings, NFTs, domain names, monetized content channels, online businesses, digital intellectual property, and subscription-based flow of income. Second, there are indirectly economically valuable assets, such as social media accounts with significant followings, years-old email lists, and creative work stored on the cloud and capable of being licensed posthumously. Third, there are the assets of purely personal value: in the case of personal correspondence, family photos kept in the iCloud, personal journals kept in Notion or Google Docs, decades of social media activity that, in a very real sense, is the documented life of a person.

Global Digital Report (2023) estimates that an average individual nowadays has more than 100 online accounts, the vast majority of which have not taken any legal or other action to determine what will become of such accounts upon their demise.^[3] The records are not lost. They merely get locked out, or to be worse, exploited.

Why the Difference Matters: What Can Be Inherited

An independent asset such as cryptocurrency in a self-custodied wallet is an asset the user has complete control over by simply possessing a private cryptographic key. There is no platform intermediation. There are no conditions of service. Provided the legal heir has a private key, or can gain access to one, the asset is by definition inheritable, even though, again, Indian succession law has not yet expressly stated this.^[4] Assets on platforms such as email accounts, social media accounts, cloud storage, digital purchases, etc. are subject to the terms of that platform, which in the vast majority of cases explicitly deny the right to inheritance.

The Legal Question of the Case Is a Digital Asset Property?

The Licence Problem How Platform ToS Agreements Deprive Inheritance Rights.

When a user makes the purchase via the Apple App Store by clicking the Buy Now button, or buys a movie in Google Play, the user is made to feel like a proprietor. The asset is shown in their library. They used real money to buy it. In the terms of service, a document which, according to research, would require the average person about 76 working days per year to read through^[5] there is a provision that essentially redefines that very transaction. The user has no property. They have acquired a personal, revocable, non-transferable licence to use the content only throughout their lifetime.

It is an intentional architectural design of platforms and its implications on succession are dreadful. The general principle of the law of succession, both in the Hindu Succession Act, 1956, and the Indian Succession Act, 1925, is that the property of a deceased should pass to their legal heirs^[6]. A licence is a personal contractual right and is not a property right and thus it does not pass. It expires. All purchases in iTunes, all libraries in Kindle, all collections in Google Play, all that can be lost totally when the account-holder dies, no matter how much money it contains, and how much the family that remains can be impacted.

Cryptocurrency is an Exception

Cryptocurrency takes a literally distinct legal status and the insight of this fact is invaluable to any reform agenda.

In contrast to platform-based digital assets, cryptocurrency stored in a self-custodied wallet does not rely on a corporate middleman. The decision to access is based solely on ownership of a private cryptographic key, a series of characters that, with knowledge of which, offers complete authority over the funds tied to that key. It cannot be revoked on any platform. It cannot be terminated by any terms of service. In this respect, cryptocurrency is more similar to physical money or bearer bonds, rather than a licensed digital product.

The issue of whether cryptocurrency is property under Indian law is, amazingly, yet to be resolved by any court.

The Contractual Trap Why the Majority of Digital “Purchases” Are Not Purchases at All.

The work of a photographer, who is a freelancer, is her life work, her source of income, her creative legacy, which is stored on Adobe Creative Cloud. According to the terms of service, when a person ends an account or dies, cloud-stored files will not be accessible anymore.^[7] What she leaves to her heirs is a lapsed subscription. An entrepreneur who owns a small business creates a customer base of 200,000 on Instagram in eight years, creating monthly brand sales. In the terms, it is clearly indicated that accounts are non-transferable.^[8] The description and its commercial value perish with its owner. Music producer builds a Spotify for Artists catalogue that earns streaming royalties. The right to access the account, as well as the administrative right to handle those royalties, is personal and inalienable according to the conditions of the Spotify.^[9]

In each case, the deceased’s family is left not with an inheritance, but with a locked door. The contractual trap is not a gap in the law as such but rather a gap created by private contracts that the law of succession has never been revised to cover.

 Indian Law: A Conspicuous and Dangerous Silence.

1  The Hindu Succession Act, 1956 and Indian Succession Act, 1925 Designed in a Pre-Digital World.

At its most fundamental, Indian succession law is a system created to work in a land, jewellery and bank balance world. Stipulations in Hindu Succession Act, 1956, covers intestate succession in Hindus, whereas Indian Succession Act, 1925, covers intestate succession in other communities and testamentary succession in general. Both laws describe the definition of inheritable property as either movable or immovable property^[10] a classification that can never be applied to password-protected accounts, cryptographic keys, or cloud-based creative archives.

2  The IT Act, 2000 and DPDPA, 2023 Cyberlaws That End at Death.

The Information Technology Act, 2000 is the main cyberlaw of India which reflects on the electronic contracts, cybercrimes and the intermediary liability. It does not tell anything about what becomes of the digital accounts or data of a person when he or she dies. The statute was written to regulate the dealings among parties who are alive.

The Digital Personal Data Protection Act, 2023 (DPDPA), is the most notable recent change in data regulation in India. However, even though it was written with full knowledge of international data protection regulations, such as the GDPR, which openly struggles with the posthumous data issue, the DPDPA refers to the data principal as a live person^[11] and does not provide any kind of provision at all regarding the rights of legal heirs to access, manage, or delete the personal data of a deceased.

Comparative Analysis: Response of other Jurisdictions.

United States -The RUFADAA Model.

The US is the most legislatively advanced reaction to digital inheritance in the world. The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which has been adopted in 47 states as of 2024, creates a tiered structure of fiduciary access to digital assets.^[12] Under RUFADAA, the online directives of a deceased person (via platform tools such as Google Inactive Account Manager) overrule the will and the default terms of the platform. Without such instructions, an executed will can give authorisation to access by executors. It is only in the absence of either that platform terms of service will regulate, and even there, fiduciaries still have restricted access privileges to a “catalogue” of communications.

The beauty of this arrangement is in its acknowledgment of autonomy of the individual: the personal preferences expressed by the deceased take precedence in the hierarchy, instead of the company policy.

European Union and United Kingdom Privacy, Reform, and the Limits of GDPR.

The GDPR, the most recognized data protection law, is only applicable to living people.^[13] Upon death, its protections evaporate. France has partly responded by the Loi pour une Republique Numérique (2016), which allows individuals to make binding instructions as to how their personal data should be handled after death [French Law No. 2016-1321, Article 63] a more limited but still effectually important change.

In its 2023 report on digital assets, the UK Law Commission suggested express legislative recognition of digital assets such as cryptocurrency as a separate type of personal property that could be owned and inherited.

The Way Forward

Statutory Recognition of Digital Assets as Property to be Inherited.

The basic reform is definitional. To explicitly define digital assets within the definition of a succession in the Indian Succession Act, 1925, as well as the Hindu Succession Act, 1956, parliament should revise the definition of inheritable property to include digital assets.

A Law Digital Wills and Nominee Designation.

Already in place in India, the banking and insurance industries have a working nominee system^[14] a system that enables account-holders to name an heir to their assets, even without succession certificates or probate courts. The same can be said about the digital platform where an analogous system should be required, which should be expected in India as well.

Amendment of the DPDPA, 2023.

The Digital Personal Data Protection Act, 2023, should be changed to provide after-death protections, over a specified period and grant legal heirs the right to access, port or erase the personal data of a deceased person in the possession of data fiduciaries.

Conclusion

The succession law has never kept pace with economic reality. Indian courts had to go decades before intellectual property was recognised as something that could be inherited. It is not until decades later that it is likely that digital assets will be treated similarly.

The digital inheritance crisis is not the first succession gap but its urgency and irreversibility are what makes it unique. A contentious piece of land still exists. A disputed bank account is held in place, on the freeze, until courts answer the question. The wallet containing a lost key is lost forever, permanently, finally. Even a cloud storage belonging to a deceased individual, after being deleted by a platform, exercising its contractual rights, cannot be restored under any court order.

The 900 million internet users in India are creating digital lives of true economic and emotional importance. Whether or not someone has access to your data even after death is not a technology lawyer niche issue. It is an issue of property rights, family honor, and the fundamental assurance of the law of succession: that what a man creates during his lifetime does not just disappear when he dies.

Author:- Aadhya Vijhani, in case of any queries please contact/write back to us atsupport@ipandlegalfilings.com or   IP & Legal Filing.

^[1] Telecom Regulatory Authority of India, Telecom Subscription Data (March 2024), available at https://www.trai.gov.in.

^[2] Reserve Bank of India, Report of the Inter-Ministerial Committee for Examination of Virtual Currencies (2019); see also Economic Times, “India’s Crypto Market” (February 2024).

^[3] Simon Kemp, Digital 2023: Global Overview Report, DataReportal (January 2023), available at https://datareportal.com/reports/digital-2023-global-overview-report.

^[4] The Indian Succession Act, 1925 and the Hindu Succession Act, 1956 define inheritable property in terms of movable and immovable property without reference to cryptographic assets or digital holdings; no Indian court has ruled on whether cryptocurrency constitutes “property” for succession purposes.

^[5] Lorrie Faith Cranor and Aleecia McDonald, The Cost of Reading Privacy Policies, 4 I/S: A Journal of Law and Policy to the Information Society 543 (2008)

^[6] Hindu Succession Act, 1956, §8; Indian Succession Act, 1925, §31

^[7] Adobe Inc., Terms of Use (2024), §4.3, 15.2

^[8] Meta Platforms Inc., Terms of Service (2024), §4

^[9] Spotify AB, Terms and Conditions (2024), §9

^[10] Hindu Succession Act, 1956, §3(f); Indian Succession Act, 1925, §2(h)

^[11] Digital Personal Data Protection Act, 2023, §2(j)

^[12] Revised Uniform Fiduciary Access to Digital Assets Act (2015), §§4-6, Uniform Law Commission

^[13] Regulation (EU) 2016/679 (GDPR), Article 4(1)

^[14] Banking Regulation Act, 1949, §45ZA; Insurance Act, 1938, §39