What happens to our virtual account or digital asset or data after our death ?
What happens to our virtual account/ digital asset
or data after our death?
It is a settle fact that in our modern age, Data is
oil or air of this virtually physical era, where we are more concerned about
our virtual presence than that of physical one. When we are living, we continue
to add or keep various data which is personally identifiable or personal data like
person’s name, picture, online banking data, contact
details, location data, race, sexual orientation, social security number,
location, online identifiers and genetic information and face orientation
etc with various online platforms. We are the owners of those sensitive
personal data and which are our personal assets as well.
Now the question is if data we share or preserve or upload is our assets then what will happen to that assets after our death or can we make an will or can our heirs inherit the same after our demise or can we make an Will of our digital asset or bequeath the same in favour of our heirs …..let’s find out.
What is Data?
THE INFORMATION TECHNOLOGY ACT, 2000
2. Definitions.—(1) In this Act, unless the context
otherwise requires,—
(o) “data” means a representation of information,
knowledge, facts, concepts or instructions which are being prepared or have
been prepared in a formalised manner, and is intended to be processed, is being
processed or has been processed in a computer system or computer network, and
may be in any form (including computer printouts magnetic or optical storage
media, punched cards, punched tapes) or stored internally in the memory of the
computer;
Let us understand the duties of the intermediaries or
third-party service providers under Information Technology Act, 2000 which is Indian
Cyber law.
Social sites and other online service providers
must comply followings:
SECTION 43A. Compensation for failure to protect data.–Where a
body corporate, possessing, dealing or handling any sensitive personal data or
information in a computer resource which it owns, controls or operates, is
negligent in implementing and maintaining reasonable security practices and
procedures and thereby causes wrongful loss or wrongful gain to any person,
such body corporate shall be liable to pay damages by way of compensation to
the person so affected.
Section 72A. PUNISHMENT FOR DISCLOSURE OF INFORMATION IN
BREACH OF LAWFUL CONTRACT
Save as otherwise
provided in this Act or any other law for the time being in force, any person
including an intermediary who, while providing services under the terms of
lawful contract, has secured access to any material containing personal
information about another person, with the intent to cause or knowing that he
is likely to cause wrongful loss or wrongful gain discloses, without the
consent of the person concerned, or in breach of a lawful contract, such
material to any other person, shall be punished with imprisonment for a term
which may extend to three years, or with fine which may extend to five lakh
rupees, or with both.
What is Sensitive Personal Data?
Information Technology (Reasonable security
practices and procedures and sensitive personal data or information) Rules,
2011
3. Sensitive personal data or information.—
Sensitive personal data or information of a person means such personal
information which consists of information relating to;—
(i) password;
(ii) financial information such as Bank account or
credit card or debit card or other payment instrument details
(iii) physical, physiological and mental health
condition;
(iv) sexual orientation;
(v) medical records and history;
(vi) Biometric information;
(vii) any detail relating to the above clauses as
provided to body corporate for providing service; and
(viii) any of the information received under above
clauses by body corporate for processing, stored or processed under lawful
contract or otherwise: provided that, any information that is freely available
or accessible in public domain or furnished under the Right to Information Act,
2005 or any other law for the time being in force shall not be regarded as
sensitive personal data or information for the purposes of these rules.
As per GDPR ARTICLE : 4
‘personal data’ means
any information relating to an identified or identifiable natural person (‘data
subject’); an identifiable natural person is one who can be identified,
directly or indirectly, in particular by reference to an identifier such as a
name, an identification number, location data, an online identifier or to one
or more factors specific to the physical, physiological, genetic, mental,
economic, cultural or social identity of that natural person.
‘personal data breach’
means a breach of security leading to the accidental or unlawful destruction,
loss, alteration, unauthorised disclosure of, or access to, personal data
transmitted, stored or otherwise processed.
Will and Passwords: Controversy:
In making the will of one’s digital asset the
person cannot mention the
password or other sensitive data in his Will as the
said will my be
exhibited in any proceeding and proved in open
Court of Law when probate is obtained, which may create a huge security breach
issue.
Aadhaar, Locking Biometrics and Inheritance:
Among billions of Aadhaar numbers generated as per UIDAI
website, there might be Aadhaar number of people who has already been expired. The
scope of cancellation of Aadhaar number is absent even after the death of a
person, but there is option that biometrics of the deceased can be locked. As per UIDAI, any resident
with valid Aadhaar can avail the locking feature which empowers an Aadhaar
holder to lock biometric.
Law of inheritance in India:
Inheritance may be through following ways:
Person leaving an will, which is a legal
declaration carrying the intention of the person making the will with respect
to his property or estate which will take effect only after his or her death.
Or by
Hindu Succession Act, 1956
Indian Succession Act, 1925
Or other personal laws
Some Instances:
1)
In 2005 Yahoo! was ordered by a Michigan Court, to
release emails of deceased to his father.
2)
In 2018, One Dubai forum ruled that Twitter,
Facebook, and others social media should deliver digital data is accordance with
a legal will.
3)
In France and Canada the owner of the data can make
will or access to their digital assets.
4)
Inheritance of digital assets are accepted in other
countries as well.
5)
In India we do not have any law to that effect
specifically covering the inheritance of digital asset.
Indian Cyber law presently dealing with data namely Information Technology Act has from its purview barred Will and other documents, more fully mentioned in the Schedule I of the Act. As per section 1(4) of the said Act:
“Nothing in this Act shall apply to documents or
transactions specified in the First Schedule:”
As per THE
FIRST SCHEDULE [See sub-section (4) of section 1] amongst the documents, the
following one is beyond the purview of Indian Cyber law:
“A will
as defined in clause (h) of section 2 of the Indian Succession Act, 1925 (39 of
1925), including any other testamentary disposition by whatever name called.”
As if we can make a will of our movable and
immobile physical assets then why not we're going to make a will or if we're
not going to make an will then what will be the future of our digital asset
that is data, and or if we die without making any will of our digital assets like
that of our other assets acquired or inherited in our lifetime, what will be
the fate of our data i.e. digital assets.
For example, can we make a will of our cryptocurrencies
where it is legal!
In our Google account we might have sensitive
information relating to funds in Google Pay, refreshing memories in Google
Photos, important documents in Google Drive -----All these and many more in
other sites, ………….your heirs may demand for their right inheritance.
If we live, if we come to this world the death is
tagged with our life so everybody has to go, everybody has to die, but we do
not want to accept that. The most important point is, now the time has come to
think about what will be the fate of your digital data after our death and how
much our legal heirs will go to enjoy your digital asset just like other
assets. What is the law of inheritance of digital assets in India? How those digital
assets be inherited by our heirs when we will no longer be there? What will be the fate of our Facebook account or our online
banking accounts or our every kind of online social sites accounts, our virtual
accounts, our virtual activities,the private and secure data, the digital
currency, the digital assets in many ways, and what are the safeguard so that
your data, your private data your acquired data, which you are the owner and
these online social service provider are only the custodian?
In the legal side the conflict that Information Technology Act does not
apply in case of Will and there lies the controversy between the Law of
inheritance in India and Information Technology Act …..the need for planning of digital asset is the
need of the hour, just like the other existing physical assets…but we need
specific law to that effect.
Comments
Post a Comment