A few years ago, Amazon sold electronic copies of George Orwell’s Animal Farm to some customers.
Soon afterwards, Amazon realised that the publisher through which it obtained the book did not have the right to sell it. Fearing a legal backlash, Amazon removed the book from users’ accounts.
Customers were not happy, arguing that they had “bought” the book legally and were therefore its rightful “owners”. Someone even described the event saying it was as if an “electronic burglar” came in and took something they had in their “possession”.
The incident – later referred to as Amazon’s Orwellian gaffe – is an excellent illustration of the rights users believe they have in terms of their digital assets, but these rights may be fairly limited, says Deidré Booyens, wealth advisor at PSG. Booyens presented the research for her LLM dissertation on freedom of testation and digital assets at the 8th Annual Fiduciary Institute of Southern Africa Conference.
The idea of ownership may be reinforced by the fact that some e-books are designed to replicate the look and feel of a traditional book with a cover and pages that can be flipped – creating the idea that buyers are merely switching their physical book for an e-book – but have the freedom to resell or bequeath the e-book in exactly the same manner they would the traditional book, which may not be the case.
The Amazon incident provided a glimpse into the limitations of the rights the ‘owners’ or ‘users’ of digital assets may have. The reader may have bought an e-book but cannot lend it to someone. They cannot resell it. In fact, they may not even be able to count on it being in their account the next morning, she says.
Booyens says when she started her research, she wondered why this would be an interesting topic to study. If she provided access to her accounts by supplying someone with her passwords, they would have access to her digital assets. What more is there to the subject?
But authors such as Jeffrey Levine argue that even if someone consents to having their online assets retrieved by providing login details to heirs in their will, the heirs could be found guilty of hacking in terms of the service provider’s terms of service agreement.
Thus, in leaving digital assets to an heir, the first obstacle is access, Booyens says. A lot of service providers would inhibit a user from providing their login details and access to their accounts to other people.
The second issue is the digital asset itself. There are various types of digital assets and the rights assigned to these assets differ, she adds. The rights assigned to an e-mail account varies greatly from the rights assigned to digital music for example.
There may also be other difficulties: a user may not want their heirs to have access to all their digital data.
Booyens says she came across a case where a widow tried to access her husband’s e-mail accounts – purely to obtain records kept in the account. However, her late husband did not leave her any login details or consent to access the digital account. To overcome the issue, she hired someone to hack into the account and discovered that her husband was having an affair.
“Obviously her husband did not want her to get that much access.”
Ultimately, the rights a user has to certain digital assets may come down to the agreement with the service provider.
In South Africa, the Electronic Communications and Transaction Act confirms that online agreements entered into with these service providers are valid contracts. The courts have also found that just because users d0 not read the terms of the contract, it does not mean that the contract is void.
But what are users consenting to?
Booyens says some service providers make it easy. Facebook and YouTube expressly state that the user remains the owner of the content that they post. Amazon and Apple on the other hand say that customers have a licence of use. This means that ownership does not vest in the user and therefore they do not have rights that can be transferred.
Even where users own the content, service providers may still assign themselves a wide spectrum of rights to use the content royalty-free and worldwide or for sub-licensing and transfer.
But what happens to a user’s rights when they pass away?
Some service providers have realised that there are various difficulties in this regard and are addressing it, Booyens says. Facebook gives users the option to decide whether they want their accounts to be memorialised, deleted upon death or whether they would like to appoint someone to administer their accounts. Similarly, Gmail (Google) offers an inactive account manager service which provides for the account to be deleted or for someone else to gain access. Users can specify how much access should be granted.
Where a user only has a licence of use of the digital asset, they don’t have the right to dispose of it, but what if they have ownership yet cannot access the digital asset?
Some authors argue that the Copyright Act has confirmed that the ownership of e-mails can be established, but access may still be a problem, Booyens says. In this regard, the definition of property may be wide enough to include digital assets in terms of the Administration of Estates Act, which means that the executor – which has temporary custody over the estate – can gain access to the digital assets.
But what about post-mortem privacy?
Booyens says that internationally, courts are having a really difficult time following one line of argument. In South Africa, legislation such as the Promotion of Access to Information Act could protect privacy after death and may deny heirs the right to access an account. However, the Protection of Personal Information Act only defines rights in terms of the personal information of a living person, suggesting that privacy shouldn’t be protected after death.