 Yes, it's not a spelling mistake, as I was asked this morning. Tainter Webb, it'll be the death of all of us. I want to actually conduct a little experiment. Could everyone just stick up their hands please? OK. Who here has had a will done in the last ten years? Embarrassingly, I stick down my hand. All lawyers are terrible at doing their own wills. So we've got about, I'd say, 40%, maybe 30% of the people here have done a will in the last ten years. The last ten years of course being, keep your hands up please. The last ten years of course being the period when social media has really come to the fore. Now, for those who have got your hands up, who have in their will dealt with their digital assets? Excellent. Excellent. I'm preaching to the young convertor. Neither have I, I should say. I have in fact, though, acted for some clients who are starting to think about this, and this is what I'm going to talk about today. The reason for the slide, of course, is that Monty Python's The Life of Brian has recently been announced to be the most popular song at People's Funerals. We're not doing too badly. Only 50% of Americans have wills at all. So we're probably a little bit better than that. I suspect that if I'd asked you, the people who have wills at all, we would have got much more than 50%. We've probably got 50% in the last ten years. So what am I talking about here in terms of social media? These are some stats and I'll run through some more stats. But as I'm running through these, I want you to bear in mind the two things which I'm talking about in terms of social media. One is the objects, or the data, or the photos, the videos, even emails, if I want to extend it further out, beyond pure social media. So the objects, the things that we upload, the things that we send, the things that we create. The second aspect that I want to emphasize is the accounts themselves. That is the service which is provided by the social media platform. Miya's talk yesterday reminded me, agonisingly, of my first experience when I started blogging. As a lawyer, of course, I researched these things very carefully and I decided on using Posteris. And Posteris, of course, is one of those platforms where my carefully curated links, my effort that had gone into creating the look and feel of the site or of my pages, was destroyed when the platform was taken over by none other than Twitter and dismantled. Now, I did manage to export the things out of it, but as anyone who has exported things off a social media platform will know, the export is nothing like as rich as the material that rested on the site itself. You don't get the links, you don't get the look and feel. Oftentimes, you don't get the other side of a dialogue or a conversation. Some more stats, you will have all seen these sorts of stats. The interesting thing about this one, I always think, is we really get a buzz out of social media while it's just a new world, but when you look at that, look at how many emails people send compared to the rest of it. 204 million email messages which is dwarfing the rest of the social media environment. So if you extend social media out beyond your typical platforms, email is still disturbingly after so long a period of time the be-all and end-all of how we communicate. I know it is in my 1000 plus level inbox at the moment. Some more stats. I circled one which is interesting in the sense that one-fifth of people using social media are in that 65-plus age bracket and that's one of the fastest growing demographics. So in terms of people dying and having a social media presence, that is already a significant number and is going to be a much increasingly growing number. Some more stats. In terms of things which people do with social media, the development of items that are uploaded, people who post blogs. Again, showing obviously a lot of creation of material, the growth in the creation of that material. So what do these social media platforms do with this stuff that we upload? So a few quotes from Facebook's data use policy. Buried about five pages in to their terms of use, away in the background of a couple of pages. It took me a while to find it, I must admit. Of course, we all read those, don't we? We all read those 35 pages of beautifully crafted legal language when we tick that little tick box. I hope so. I get paid a lot for writing them. Of course, never read any of them. You are the product. Interesting there. Metadata. We'll talk about that in a minute. Just checking out what the stats are in New Zealand. This is taken from Stitix NZ's most recent figures. So 29,500 or so people in New Zealand die every year. That's total, so that includes children. As I understand it, the figures are pretty high in terms of children who immediately as they're born to the Facebook page. Despite the fact that it used to be the case that you had to be 13 to have one. I had that argument with my daughter. Interesting stats there. So if we're thinking about the fact that all of these people are creating all of this information, then there are a lot of cat pictures. And someone owns or has carefully curated those pictures. So what I wanted to try and do at this was, well, that must be a lot. I'm not particularly good at maths. So I started off trying to work out, well, gee, if I multiply those older people and try and work out their mortality rate, multiply that by the number of objects that they are likely to be putting up, divide that by the number of people dying, multiply by how long is my arm, and create an algorithm or a piece of calculation to work out how much is it going to be. It could be a huge number. And that's the number I came up with. So as I said, at the moment when we think about it, we think of the items that people are putting up and also the contracts or the relationships or the terms of use that these sites have. That second aspect is pretty important when we're thinking about this issue. As we'll see in a moment, the law, as with most laws in the online environment, struggles to keep up. We have to pour it into new bottles. We have to morph it and adapt it. People like myself stretch it beyond breaking point sometimes. And our clients are threatened with that breaking. But the important thing from this perspective is that the sites themselves really control it. So when you're talking about property or digital assets, whatever it may be, the typical situation is that the property will flow to the estate. But these are just contractual rights. Licences to use a platform. So that right itself, possibly, maybe isn't property, it may be something slightly different. But it is shaped and crafted by the terms of use of the particular platform. So that 35 pages of material that you blithely tick the box to will control to some extent what happens to your digital assets after your death. And that's a problem because there is complete lack of uniformity around the sites. So I've chosen three examples here. Facebook, Google and Twitter. Facebook, possibly, is the most advanced in thinking about this because, as you saw from the previous stat, even in 2012, 30 million people on Facebook were no longer on Earth physically. So Facebook has a system where people can memorialise the page. So your Facebook page can be memorialised by your next-of-kin or executor. What happens is that it shuts down certain functionality of the site. No further friends can be added. Friends can continue to post things like birthday notifications get shut down, which again is one of those horrible things about Facebook in the sense that if you don't do something with it, it just continues to turn on as though you're still alive. So I, for example, actually it wasn't Facebook, it was LinkedIn. I shouldn't disparage Facebook too much. Well, maybe I will. It was LinkedIn. And I got one of those typical It's X's birthday sentiment congratulation. X happened to be Eric Hertz, the CEO of Two Degrees, who had died in a tragic plane crash only a few months earlier. Now, I just happened to know that, of course, but if I hadn't known it, I might well have if I was one of these people who send these very sincere birthday wishes. I might have sent that birthday wish and, of course, his site may have been monitored by one of his family members and that would have been terribly upsetting. So important, not just from a legal platform perspective, but from a humanity perspective to understand that these things do take on a life of their own. So Facebook allows that memorialisation process. Twitter seems to run a fairly ad hoc sort of process. For all of them, you have to send in your death certificates or some sort of evidence that you've died or rather your estate does. And they will then process it and decide what to do. With Facebook, for example, when they brought out the system of memorialisation, which is three or four or five years ago now, it was quite locked down. They really were trying to make sure that it was curated properly. They had people reviewing the posts to make sure that they weren't insensitive and so on. So quite a high degree of hands-on curation. But as with everything with Facebook, they keep changing the rules. So they've gradually allowed more, what they would call, more flexibility. Others would call more monetisation of the information which is put up there. So you're starting to see things like advertisements come up around it. You're starting to see other people being able to view, at least, view some of the material on the sites. Twitter, as I said, is a bit ad hoc. You send it in and they decide you make a request as to what's going to happen. Typically the request that they allow is for the tweets to be exported, which you can, of course, do yourself. But once you're dead, you can't. You have to get someone else to do it for you. You're executive, so you have to prove, the executives have to prove that they do now have the rights to act in your estate, whether it's be with probate or some sort of administrative papers. Google sort of similar to Twitter. Again, the shutdown. Neither of those sites have a sort of a very practised memorialisation system. The important thing, though, with all of the sites, in fact, just about every site you see in a social media sense, they will all say that the contract that you have, the licence to use their services, is not transferable. It is personal to you. So, in a sense, what they're saying is, if you die, that's the end of the story. It doesn't, they would say, not automatically transfer to your estate. Now, here's where it's important to distinguish between the licence to use the system, the platform, and the material which you have uploaded. So, I'm not talking about the material in the instance. I'm talking about the use of the licence to use the platform. So, the licence to continue to have a Facebook page or to continue to use your Twitter avatar account or a Google YouTube account. All of those things are expressed in their contracts to be non-transferable and therefore don't go with your estate unless they allow otherwise. That's the default position that they've set up. In other words, they do what they like and they can change the rules, as we've seen so often, whenever they like, as they often do. Different, of course, with the actual objects that you have uploaded, those to the chagrin of social media sites have been carefully now expressed to belong in most instances to you. So, your intellectual property, your copyright in those materials is retained by you when you upload the material. You grant a licence to the site so that they can distribute the material through the use of the actual system itself. So, if you upload a photo to Flickr, then you retain the intellectual property or don't, depending on what you want to do. You can give it away in a Creative Commons 0 licence if you want to, or say it's public domain. But as the default position, you own it. You decide what's going to happen to it. The site is granted a licence so that they can display that Flickr image so that other people can see it, which without that licence that you've granted to them in the terms of use would be an infringement of copyright by Flickr. So, those objects are, in some senses, your property, and do, in some senses, as we'll see, transfer across in your estate to your executives for those of you who have done wills. For those of you who have done digital asset wills, then even better, you'll have specified that. So, how does the law deal with this? As I've said before, not particularly well. So, these are the two pieces of legislation which are primarily govern dealing with the estates. The wills act deals with how you right your will and whether it's binding and that it's being signed properly by yourself and the presence of two other people who are independent and so on. Once you've done all that, then you're into the Administration Act, which also governs people who don't have wills and sets up default rules as to how property goes in that situation to cascading level of seniority or presence in a person's life, wives, siblings, children, so on, parents. But here we're starting to get into, in the law, the absolute morass of definition around what we mean by property. And these are all definitions which were designed for an analogue meatspace world, not for a digital world. They really are still focused to a large degree on the tangible, the physical. They're not particularly well crafted for dealing with the digital, the intangible. So, I started casting around, where can I find more guidance as to what we're talking about here? So, I, of course, in this context, look to NZ Goals to see what NZ Goals said about, sort of public data. Can I get any guidance from that? Not really because copyright is quite a difficult concept when applied to digital assets. And this is what copyright says about intellectual, about copyright material. It says it's a property right. That's a good start. At least we're on the same track. And it exists in these things. The difficulty with copyright, of course, in the New Zealand context, difficulty in this context anyway, is that it's not registered. So, there's nowhere you can go to find out in the absence of someone actually proclaiming that they own the copyright and then being able to determine whether, in fact, they did create that original work and that it's not infringing someone else's material, there's nowhere you can go. Different with trademarks, registered trademarks and patents. There are obviously items of property which are registered. The register itself creates the property right or delivers the property right. So, those are much more easily transferable. So, if we're talking about a piece of digital, a digital logo or something like that, then if that's been registered, no problem, that's simple. And the Trademarks Act deals with that sort of thing. Patents, similarly, if we're talking about a patent with a piece of software prior to New Zealand seeing the light and getting rid of software patents, then that would be the same sort of thing. It's registrable, registered, transferable. I was interested to see in the Facebook's teams of use that they called out metadata, which throws up a whole another area of confusion in this context. Confusion in lots of contexts is these two gentlemen hashed out in front of the select committee. But in this context, complete open slather. No one quite knows from a legal perspective who owns the metadata that is generated when you interact with a social media site. Is it your metadata? Is it the site's metadata? Is it some sort of information commons shared environment? Who can control it? Who can maintain it? Again, you come back to Facebook's terms of use, which effectively say you're giving it to us, we can do what we like with it. We can change it. We'll tell you what we're going to do, but we can change what we're going to do and as you were seen from the terms of use I put up on the screen earlier, those terms of use are pretty opaque. They talk in very, very large generalities around yes, we can share it with our partners, yes, we can use it to improve site performance, yes, we can use it to ensure that your experience is the best possible experience, but that really doesn't tell anything, does it? It doesn't really tell us what they're going to do with it, where that data is going to end up. And so we end up in the privacy sphere and privacy in New Zealand, this is from our Privacy Act, again Data the Act gives you a clue 1993, a little out of date in the digital world. Luckily we are looking and the government has committed to spending a significant amount of money in gearing up the Privacy Commission we have a new Privacy Commissioner John Edwards who is very much a failure with the digital world as we've already seen with him dispensing with his hard copy his hard copy monthly issues and going to a blog pretty radical the interesting thing about this of course is that bottom line which I've highlighted under New Zealand's law deceased people have no privacy protection so we can't even the fact that we are saying that we don't quite know whether this metadata or this data or this information which we have shared through a social media platform is property and therefore belongs to us or the licence continues beyond our death, even though we can't even say that, but we can't even say that that information is once we've died private anymore because our act specifically says it's not private now there may be spillover effects and I think me as example yesterday of the fact that when you find out some information about a particular person and spread that further out you're actually finding out information about their families and the people around them there may be some privacy aspects of that that we can latch onto and say well actually the fact that you are divulging information about this deceased person is actually telling private information about another family member who is still alive so that family member might have some rights to preclude that information being disclosed but the fundamental point is that the deceased person themselves has no privacy which is pretty strange really when you think about it it's the quintessential common human factor not the lowest common denominator the highest common factor that we all die so the fact that we somehow lose all rights to privacy in circumstances which if anyone has been involved in the distribution of estates or working through disparate families will know that those sorts of pieces of information which then bubble to the surface as the matriarch or the patriarch or Uncle John dies are extremely personal and extremely private and they are very difficult to deal with sometimes so the fact that that information about Uncle John who ended up having a affair with Aunty Judy who was not his wife is a pretty personal private piece of information but unless Aunty Judy is still alive that information is now public access information great for some of you in this room I suspect to track that genealogy and to find out what happened and why Aunty Judy then went to Australia but not so good for some of the other family members so getting further afield an eminent legal writer in New Zealand wrote this one just recently our Court of Appeal in its wisdom has just come out with a decision which reinforces an earlier decision which says that data is not property for the purpose of the Crimes Act which is pretty damn weird because the provision they were talking about is a provision which was inserted in about 2006 in a bill which was to deal with computer crimes so the computer crimes provisions of our Crimes Act don't deal with digital data yeah me and a few others think we might do something about this interestingly the decision on which it was based the decision called Dixon this was a watch-horn decision it was about Ian Wishart's book long series of cross litigation and so on as to whether sources could be revealed shades of Niki Harger and so on the decision on which this was based the Dixon decision is now being appealed to the Supreme Court and myself and a few others are considering seeking to intervene in the Supreme Court that is to find an organisation gosh what organisation could I find looking at you Andy to intervene in the case to seek leave to intervene you have to seek leave in any court case to intervene as a interested party beyond the interests of the two participants in the case to try and work through our court could come to the conclusion that someone accessing for illegal purposes very valuable data and in this case it was the complainant was tug oil the information was a significantly valuable series of geospatial oil research information which they had collected some of which and I can hear Glen and others saying oh that holy shit that's got to be open data that's public give us that stuff it's just facts but putting that to one side the court held that the fact that that information was accessed and it was clearly private information of the organisation that it was accessed from by an employee who had now gone to a competitor and was about to use it was not a crime under that provision simply because the data itself was held not to be property which just seems astounding to me so where does that leave us in terms of this concept of what happens when we die because as you saw before all of the statutes start referring to property or they refer to shows as an action which are tangible rights which are intangible rights which can be transferred all of those laws when you start looking at cases like this start to fall apart because if a court can say well it's not property in a criminal sense courts what they tend to do is they say well yes it was a criminal case so perhaps not as relevant but it's persuasive in other environments so it might be persuasive in a case where someone is seeking to take control of a deceased's personal data they would argue well the personal data is not property and therefore it doesn't form part of the estate and therefore the executives of the estate no longer have control of it it is in some senses open slather or it could be an argument with one of the platforms themselves around well how do I get access to that information when I collect it back is the metadata the property of the person who is deceased can I as an executive seek that information from the site itself or am I now bound by the terms of use of the site and the law just has to take a backseat because I can't use arguments around unauthorised access or unauthorised use in a criminal sense to threaten Facebook to say give me that information so watch that space in the Supreme Court so basically what we're facing here is a fail the law and the combination of the law with the terms of use of these platforms does not deliver us an answer to what is increasingly or what is a fundamental and increasingly huge problem and I this brings up the themes that you heard from Brewster and from Mia around this problem that we are creating if we don't do something about it in terms of how we make sure that digital information is preserved and kept from a personal point of view certainly from an institutional point of view there is a lot of work being done there but if we can't even decide what the legal principles are when a person dies as to what happens with their digital legacy then we have significant problems in terms of maintaining and ensuring the continuity of that personal community history it's a definite fail for me so maybe there's a legal solution hot off the press November 13, 2014 there's an organisation in the United States which develops because the states have as the name would suggest lots of states and therefore lots of lawmakers they develop uniform pieces of legislation which they then try and persuade each state to adopt they have just come out with the Uniform Fiduciary Access to Digital Assets Act and as an acronym usually actually they've been pretty good lately in the states usually they've tried to find real catchy snazzy jazzy acronyms life or patriot or all of those sorts of quite neat acronyms they obviously didn't get that with this one so what this piece of legislation does is take a very small step and I would guess that in the United States with multiple states having all sorts of different perspectives and different aims and different political aspirations that a small step was deemed to be the best step that they could hope to achieve and then hopefully they'll build on that so what this does is simply ensure that if it's adopted in a state it would ensure that of a will or the person who has administration of their state under an intestacy, that's where there's not a will has control so rather than the terms of use of the platforms themselves overriding and saying well these assets don't go into their state this would effectively ensure that that person could interact with the site and that the material or the licence would in theory go through to the estate and could be dealt with by the executor as if it was just another piece of property you know like a bank account or like a power account or whatever the accounts continue to run the estate is responsible for them they either terminate them or they continue them if the power needs to be on in the house or whatever it might be just a very normal situation it's just that we've grown up with social media platforms being able to do what they bloody well like so this is trying to take some of that some of that back so quite a useful thing it's been adopted in one state so far, Delaware, which is probably the home of the most corporate side of the United States registrations it'll be interesting to see if it's adopted elsewhere there are other states who have tried to do sort of piecemeal bits and pieces but this is the first coordinated approach to this issue so that's the legal solution but as I said in the states it'll take a long time in New Zealand the issue has been starting to bubble up we've seen those cases but there's certainly no prospect that I've seen of any law actually coming forward our Privacy Act may change in respect of that provision which says that deceased people don't have it may not the Privacy Act has been completely redrafted so that's going to be a really interesting exercise to see how that comes out and whether this one, this issue will pop up into it as anyone's guess so we need something in the meantime the solution in the meantime is to do what the internet does best which is to hack around the law did I say that? I'm not I am being streamed shit um if my partner's a listening that was just a throwaway comment so yes to hack around these issues so the first thing obviously you've got to do is for those people who didn't have their hands up having done a digital will I've got a little list out the back so just sign up very cheap to do a digital will later with that I might have been thrown a rock or something like that for geo and blocking content from overseas from Netflix so there's that for God's sake if you're talking to people yourselves do deal with your digital assets in your will so that's around thinking about what digital assets do I have what am I going to do with them who's going to have control of them if I want to happen to my Facebook page my Twitter stream my Google, my YouTube account all of those sorts of things pretty basic stuff that we of course all nearer do but let's do that and let's tell everyone else that they should be doing it too it doesn't actually have to be in your will it can just be a letter or a memorandum or wishes to your executives to tell them to do that the second thing I think we should do is really hack around the social media platforms and make sure that you leave the passwords with someone and whether that's all of the passwords or whether it's using something like LastPass one password to control them all and leaving that password with someone else that I have done I've done that so at the very least the person who you are giving the rights to your estate your executor whether that be your spouse or whoever it might be will know that there is some stuff out there that they need to deal with and will have access to the account now yes, I tell you right now that is a breach of just about every single social media platforms terms of use for you to use those passwords and go and use the site as though you were the person who was now deceased completely illegal go for it what's going to happen what's the worst that could happen if you're the executor of the estate then you are in control of much more someone say others might not more important assets than their digital assets if we're prepared as a person in our will to give the person that control over our tangible estate then we should surely be prepared to give them that control over our digital legacy and I would challenge most social media sites to try that one on in a court and see what sympathy they get so legal solutions but better solutions practically and because it's the glam sector I thought I shouldn't close without putting a digital NZ sourced cartoon up and since I've recognised that one should put one's own family member up and grandfather so ask me anything you want we've got about by my account five minutes what are your thoughts about the right to be forgotten that's developed in some European states and where that could be useful here you didn't want to talk did you Evelyn the right to be forgotten yeah that's a big topic we actually have a right to be forgotten in New Zealand not a lot of people know that our privacy act specifies that information can only be held by an agency for so long as necessary for the purpose for which it was collected which is effectively the right to be forgotten expressed in a different way so you can actually go to an agency to any social media platform and say hey I don't want that information kept anymore because the purpose for which I put it up there is no longer relevant whether they will take it down or whatever or whether you can take it down is another question and remembering that the issue when someone has died becomes a lot more complicated but the right to be forgotten is obviously critical to this as well it's there's a lot being written around it it's very European that decision it came out of Spain has a very different way of approaching those sorts of things one thing that I would say and this harks back to my point about my losing my poor posterist blog sad was that these platforms do change and they are commercially driven as much as Google might say they do no evil their concept of evil is quite different from mine and I'm sure quite different from yours so the idea that we should give the power of censorship of the internet because of course that's what a right to be forgotten red large is to a commercially driven organisation is an anathema to me I don't particularly like giving it to the state let alone giving it to an unaccountable non-transparent commercially driven organisation to decide whether or not they are going to take material down based on a group of people in the Philippines so that so that to me is a bad idea and we're already seeing it with Google I'm sure Google is playing the game pretty well by showing the most blatant and egregious types of examples of information which has been taken down but yeah it fits into the mould fits into the whole licence that you're getting from a social media platform was another question Thanks for the presentation Rick those of us here who in our sector who sort of manage collections we're in the remembering and forgetting business so we sort of memorialise people or enable them to be forgotten just through acts of collecting or making accessible but we tend to look at it what we do just through the sort of cultural heritage lens often and not necessarily through the sort of legal or accountability lens the government archives and the state archives often do but I wonder what you thought of our role as a sector for sort of advocating or being activists for the sort of legislative solutions that you were proposing As I say I think that we are in danger of losing this material and if the legality of these situations creates a barrier as I think it does through its uncertainty at the moment then that will only exacerbate the problem so I think that from this sector it's important to agitate for clarity both from your own perspectives in terms of your ability to archive your ability to grant access and so on to the material and also from the individual family members executives point of view in knowing whether they can grant you those rights whether they can deal with the material how they can deal with the material so I think this sector it's not something that individuals will consciously think about you have a better handle on what the issues are going to be if we don't deal with this properly which is why I'm glad to talk to you today because it's an individual problem but it's a community issue TPPA will possibly have on these things I don't see having a huge impact other than TPPA TPPA will make some changes if it's passed in the form that the United States wants to our copyright law so it may make things like notice and takedown slightly more strenuous ironically in that area it may turn the clock around and give New Zealand a right for people whose material has been taken down to issue a counter notice so I don't think it will have a huge impact copyright law at its core the fact that copyright is a property won't change as a result of TPPA We might need to wind up this session but please join me in thanking Rick for his amazing comment.