People’s digital legacies need protection in internet era

By WANG SIMENG / 10-17-2019 / (Chinese Social Sciences Today)
Whether the items in a digital legacy such as social media accounts, in-game equipment, and virtual property qualify as property that can be inherited is stirring up a heated discussion in the internet era. Photo: CFP


Due to its value and potential uses, data has become an important resource in the internet era, impacting modern people’s lifestyles and cognition. At the same time, it also brings new challenges to the law. For example, when citizens pass away, what should be done with their digital legacy in the virtual world? A digital legacy involves personality and property rights, which are of great value to every citizen. However, in many existing cases, the protection of digital legacies has already raised a dilemma.
‘Digital personality’
Online data records every aspect of a person’s life, underlining their preferences, emotions and thoughts. As time goes on, citizens cultivate not only a self in real life, but also a “digital personality” on the virtual network, both of which work together to form the complete personality of the modern person.
History keeps track of the trajectory of social development. In the traditional context, history exists as a text, and French philosopher Jacques Derrida even argued that “there is no outside-text,” which means that there is nothing in the world that is unmediated. This shocking view shows the cultural trend of that era: Communication cannot exist without the context formed by the two parties of the conversation.
Modern media technology breaks through the restriction of context on communication. Mark Poster, an American critical theorist, believes that the internet subverts the traditional stable and centralized subject and constructs an independent “digital subject.” Traces of personal data are related to others, collectively recording the history of one’s life. 
In the new social context, digital life can solve Derrida’s dilemma, but the digital personality shaped by the digital subject brings new problems. The digital personality endows an individual identity with more possibilities, reduces the dependence of social interaction on space and time, and impacts the inherent social class. 
The digital personality is separated from the individual, and it does not change immediately when the individual dies or becomes incapacitated. In a public space, people with different identities can jointly write a text and leave data. Digital writing, video conferences and so on all reveal a new type of information, which subverts the centrality of the author. Decentralized individuals are only part of the network, and thus the protection of digital legacies faces difficulties.
The core of a digital legacy is a digital personality. The digital legacy refers to the virtual property of a natural person existing in digital form on the internet, including all data stored in digital terminals and networks, such as online account information, virtual currency and information that falls under personal intellectual property rights. When citizens pass away, they lose the right to information self-determination, and their real-life property can be inherited by their relatives, but their digital legacy is in an ambiguous state under today’s legal framework.
Legal concerns
The data discussed in this article refers to electronic data, which is dependent on communication equipment and exists in the form of code or programs. It has the dual attributes of communication content and media, different from the information that is separated from media in real life. Electronic data has a unique flow and can be used to analyze the behavior of citizens.
The sources of data are extensive, including records of the objective world and human society, as well as new data generated by the analysis of existing data. A digital legacy falls under the purview of social behavior data or, in other words, data generated by citizens’ use of social media. This data is often identifiable and non-exclusive, and they can be collected and used by multiple parties. 
The data collected by internet service providers contains more personality elements, which involve the personality rights of citizens. In contrast, the traditional legacy refers to the personal property and other property rights left by the natural person when he or she dies. The anonymity of the internet provides modern people with privacy and the opportunity to create a digital personality completely different from that of real life. Then, are people willing to show this digital personality to the world after their death?
Is data property? The issue is complicated. There are three uses of the term “property” in law. First, things are property. Second, the concept of property implies a concept of rights. Third, property is divorced from the legal concepts of things or property rights, and it is defined as the legal relationship related to economic interests or consequences, which applies to the issue of digital legacies, in which data is related to economic value and thus has property attributes. 
The concept of “virtual property” has been widely used. Classifying data as virtual property is conducive to solving data disputes involving economic interests. Data has become an important commercial resource in modern society. It is reasonable to treat data as a kind of property. However, the question of whether the data itself is property needs to be further considered. Some argue data consists of things that are covered by property law, whereas others emphasize the contractual relationship between internet service providers and users and then apply contract law to protect virtual property.
Ways of protection
According to China’s internet giant Tencent, WeChat saw 1.08 billion monthly active users in 2018. On average, WeChat users sent 45 billion messages and made 410 million audio/video calls every day. In contrast to the huge number of active users, there is the problem of dead accounts. Some online accounts are left behind after an individual passes away, and this digital legacy creates a problem that is hard to tackle.
In previous cases, China tended to view a digital legacy as an object, while the United States tended to classify online accounts as a privacy issue. In 2011, Ms Wang asked Tencent for the QQ password of her deceased husband in order to obtain the letters and photos of the two in his QQ mailbox. Tencent rejected her request on the grounds that the data belonged to Tencent and users only had the right to use it. 
In the first digital legacy inheritance case in the United States, John Ellsworth asked Yahoo for the email account of his son, who had been killed in the Iraq war, but Yahoo rejected his request out of protection of its user’s privacy. Mr Ellsworth then sued Yahoo. The court then supported Yahoo for not providing the password, but ordered Yahoo to make a CD of the e-mail documents. In this case, the judge protected the privacy of the user’s password, but ignored that the emails also involved a privacy issue. There is yet to be a definitive decision on the status of email as to whether it is an extension of the deceased’s estate at the time of his or her passing. 
A digital legacy, different from public resources or real property, is exclusive. It involves the data control and order of inheritance after the death of a natural person. At present, its protection faces two dilemmas in China.
For one, property law and inheritance law have no specific provisions for digital legacy. For another, it is difficult to determine the ownership. In order to obtain more personalized services, users agree to the authorization agreement of the internet service provider and share valuable information with them. Internet service providers invest heavily in the process of collecting personal data and use the collected personal data for business activities, which seems to be a mutually win-win situation. 
The question is, who owns the account? The user or the internet service provider? The inheritors of the digital legacy are diverse, including an heir or a descendent, as well as multiple internet service providers, so it is difficult to divide the property. The data is shared by multiple subjects at the same time, and there are multiple legal relations, which can be roughly divided into two categories: One is the relationship between users and internet service providers; the second is the infringement caused by the theft or disappearance of digital property. If the subject of rights is uncertain, it is difficult to determine the ownership of the digital legacy.
A digital legacy is the information package of an individual in the network society, and its legal value cannot be overlooked. To inherit and protect digital legacies, legislators should consider the rights of citizens and make reasonable arrangements according to the law of network development, network technology and commerce. The law, with its mandatory nature, will reorganize existing internet service providers’ unilateral agreements on the flow of data and the inheritance of virtual property, and it will harmonize the relationship between citizens and internet service providers.
In this light, the legal protection of digital legacies in China can be carried out in three aspects. First, case studies can be issued to help resolve disputes over digital legacy inheritance and to gather practical experience for future legislation. The second is to introduce a judicial interpretation on whether the “other legal property” in the current inheritance law includes digital property. Third, we need to revise and perfect the existing laws, list digital legacy in the category of heritage inheritance, and fundamentally protect the legitimate rights and interests of citizens.
Wang Simeng is from the School of Journalism and Communication at Nanjing Normal University. 
edited by YANG XUE