In his article that draws from many areas of the law and the public policy concerns supporting each of them, Professor Andrew Gilden hones in on the shortcomings in the legal regime that governs the succession of social media and other digital assets. The article doesn’t focus on “ownership” but instead the “stewardship” of these assets—a concept in itself worth reflecting on as planners. The article has three parts: (1) a summary of existing stewardship principles; (2) Prof. Gilden’s new concept that seeks to address the shortcomings of the systems he summarized; and (3) how this new concept can be implemented. The first part is most useful for practitioners considering approaches to plan for their clients’ digital assets and legacies and makes the article worth a look.
To embrace and absorb the thought leadership from academia in the article, estate planners must make some allowances when the theory isn’t enriched and informed by the practice. The article is more a call to arms for “scholars and lawmakers” to address the problem in the future as opposed to arming estate planners with planning tips to help clients now. One of the overriding concepts of the article is in its first two sentences:
Social life no longer ends at death. With the rise of social media platforms and advances in digital technologies, the challenges of planning a person’s legacy now include far more than traditional questions of inheritance and financial planning.
However, social life has never really ended at death. While the article suggests that most of what we do as estate planners is plan for the financial assets—it’s hard not to have an estate in which the “personal effects” can be the flashpoint for an estate dispute. Diaries, photos and correspondence remain after a decedent is gone—so it’s an issue we’ve had to address for some time. This isn’t to suggest that a handwritten diary is the equivalent of a Facebook or Tinder account, but lessons that have been learned by estate planners aren’t entirely obsolete and aren’t considered in the article. Further, social media isn’t exactly new as planners have been addressing this issue for more than a decade, granted with ever increasing frequency. While none of us are perfect in the planning we do, certainly the experience of practitioners has created solutions more nuanced than having clients “sit down in an attorney’s office and make one-size-fits-all decisions…” as suggested in the article.
Diving into the scholarship, the first part of the article that examines the concepts and competing concerns is exceptionally well done. The table is set for the reader by defining the four parties involved and the four fields of law that relate to social media. In terms of the parties, as with anything a decedent owns—the decedent and the family/beneficiaries are two of the key parties. In addition to these, while handling social media assets, we must consider the service providers (that is, Facebook, Twitter, etc.) and the general public that have an interest in or social relationship with the decedent. The four areas of law are: trusts and estates; copyright; publicity rights; and digital asset law. These stakeholders and areas of law serve as lynch pins that tie together four distinct existing approaches on how the law deals with the succession of social media.
The first approach is very familiar to estate planners: freedom of disposition. The core of trusts and estates law is the concept that it’s the decedent who decides who gets what. Out of the four parties, the decedent is prioritized with this model. The article notes that there are two substantial drawbacks to this approach, namely that most individuals don’t exercise this right (that is, they don’t plan) and that the needs of those who remain living should be given due regard as the decedent may not always know best.
The second approach is the family inheritance model. Under this model, it should be the decedent’s family that’s given more of a say on how assets are handled. The article points to two areas of law that support this concept. While some explanation is given as to how trusts and estates law provides support for this approach, it’s really the analysis of intellectual property law that provides a sound legal basis. The article notes that the drawback to this model is that the emotional and financial incentives at stake can have the family make choices that aren’t best for other stakeholders, especially the general public. Further, blood doesn’t necessarily translate into the family having the “cultural competency” to manage or even understand the digital assets given.
The third approach is the public domain, which is owned by all, unlike the prior two that focus on private ownership of assets. This approach most directly highlights the distinction between being an “owner” of an asset and being a “steward.” Given the potential flaws of the prior models, the existence of ownership rights may entirely undermine and prevent effective stewardship of an individual’s legacy. This position prioritizes the needs of the general public—those who may be unrelated by blood but have a strong connection (whether a relationship to or admiration of) with the decedent. This concept primarily finds support in publicity law. Despite the appeal of having someone’s legacy left to the masses, the article notes that the public isn’t entirely democratic, and this approach doesn’t given enough protection for privacy concerns.
Finally, there’s the consumer contract, in which the third-party service provider has the most say. This contract finds its basis in digital assets law, in this instance, the Revised Uniform Fiduciary Access to Digital Assets Act. Here, the individual establishes what will happen using an online tool the service provider has available. If that isn’t used or available, then the estate-planning documents can direct what will happen. If there’s no online tool or estate-planning documents that address these assets, then the provider’s terms of service (TOS) governs. One criticism of relying on the TOS is that, effectively, the provider can write its own version of intestacy laws in its TOS. Another is that the company will act in its best interest without sufficient regard to the decedent, the family and the general public.
Having done an excellent job identifying the shortcomings of the current system, the balance of the article then presents the solution—what’s referred to as the “decentered decedent.” The explanation of this concept succeeds in identifying what it’s trying to achieve, though it’s difficult to understand exactly what it is or what it will produce. The decentered concept is rooted in six underlying principles: (1) the dispersion principle; (2) the diversity principle; (3) the familiarity principle; (4) the competency principle; (5) the dependency principle; and (6) the loyalty principle. The decentered decedent, while not a solution in itself, is accurately represented as “a conceptual through line to help harmonize” the competing stakeholders and parties. The author identifies certain areas of reform in which this thought model could be implemented to find a better way.
Prof. Gilden’s scholarship gives us something to consider in our practices. Granted, his piece wasn’t aimed at practitioners, so his solutions aren’t designed to be used by us to help clients. However, this analysis in the first part of the article, and the six underlying principles of the decentered decedent, can give practitioners something to think about as we craft our own solutions on how we plan with these assets.