Social Media and the Law of Succession: A Kenyan Scenario
This blogger recently came across a touching tribute (see here) to a fellow Kenyan blogger, Idd Salim, who passed away one year ago this month. Although he is fondly remembered for his hard-hitting blog articles on the technology and telecommunications industries in Kenya, these articles are no longer available because his blog domain has since expired: http://www.iddsalim.com/blog/
From an intellectual property (IP) perspective, this blogger is clear that all Idd Salim’s literary and artistic works online would remain protected under copyright until the year 2064. However there is a more fundamental question, which this blogpost asks namely, how should succession lawyers in Kenya advise their clients on their ‘digital assets’ when they die?
What ‘digital assets’? Any accounts that you open online, including email, social networking, photo-sharing, as well as websites and domain names you own.
The law of succession (governed principally by the Law of Succession Act Cap 160 Laws of Kenya ) is the branch of law dealing with inheritance i.e. the transmission of ownership of property from the dead to the living or the transfer of property rights from the dead to the living which is founded on the fact that a dead person cannot possibly own property because he or she cannot enjoy the rights and benefits accruing from property. Therefore following the death of the owner of property, rights over such property have got to be passed on to those who survive him or her.
But what it appears that “online” property? With so many of us emailing, blogging, tweeting, facebooking, eBaying and otherwise living online, it is clear that a huge portion of ourselves resides on the web. The fact is the average person has a handful of websites and email addresses to their name, not to mention domain names, LinkedIn, Flickr and other online accounts.
In cases of testate succession, the deceased has made written arrangements for the disposal of his property, in a will or a testament. Therefore the only necessary addition is to ensure that account names, usernames and corresponding passwords are provided along with instructions on the administration of these online accounts.
In the case of real and personal property, administration entails essentially the collection and preservation of all the assets, interests and benefits which make up the Estate of a dead person. Where the administrator or personal representative is appointed by the court, s/he is known as an administrator but where he is appointed under a will, s/he is called the Executor.
In the case of social media, the digital administrator/executor would take over the accounts of the deceased in order to execute the latter’s wishes on what accounts stay open, get transferred to someone else or get deleted forever.
In the case of intestate succession where a social media user dies without having made a will or having made a will that is invalid, the principle remains the same but different rules may apply. In Kenya, the rules of intestacy determine that only blood relations of the deceased person are entitled to inherit as opposed to testate succession where anybody can inherit.
Therefore the online executor(s) in the case of intestacy must sit down and come up with a list of all the websites and online accounts owned by the deceased. In the case of domain names, the digital executor will have to decide whether or not the domain(s) will be renewed and how will associated costs be financed. When the executor decides that certain or all social media accounts should be permanently deleted, there are specific rules and policies that would be applicable. Most social media accounts require that the executor submits proof of death, most likely in the form of a death certificate issued by the relevant national authorities.