This article has been written by Ms. Sanjana Kumari, a student of 2nd year student of Llyod Law College, Greater Noida.
Abstract
We are living our life online increasingly and increasingly nowadays. We wangle internet banking, investments online and into liaison with our family and friends through various social media and other ways over the internet. In this context it is rhadamanthine increasingly and increasingly important that what happens to our digital existence without our death. In the process of digital inheritance, digital media is handed over to the beneficiaries in the form of rights and digital resources understanding the rights that exist with the beneficiaries without a person’s death. As the digital inheritance concept is quite fresh, substantial legal systems are yet to be established to deal with matters without our death. It is for that reason the websites who govern the act of the users. It is well-spoken that a comprehensive legal wattle is necessary to write this important issue of digital inheritance and hopefully this will be dealt with by the various Governments wideness the world in due course. This paper explains the concept of Digital Inheritance and explores the various options social media services provide for managing a deceased user’s data. An effort is moreover made to suggest that Digital Will may be a nomination to write this problem.
What is Digital asset?
Digital resources are the result of the economy rhadamanthine increasingly digitally connected. They are distinguished by their binary nature and potential or very worth. Nonetheless, the extant literature lacks a consensus definition of digital assets. These resources are specified as electronic records containing an individual’s right or interest under the Revised Uniform Fiduciary Access to Digital Resources Act (RUFADAA), excluding underlying resources or liabilities unless those are moreover electronic records. Networked system assets, software assets, hardware assets, service assets, robotic assets, data assets, metadata assets, and digitally unfluctuating devices are only a few examples of the several forms of digital assets.
Particular legal problems occur when traditional starchy rights objects move into electronic or digital formats. Legally speaking, it is reasonable to recognize them as digital resources given their particular qualities and requirement for specific legal handling. Differentiating between a wide and restricted definition of digital resources is crucial. All property that exists digitally or electronically and has the potential to be used in the transfer of wealth is considered a digital asset. Digital assets, in this context, are new economic entities created by the use of digital technology.
To guarantee the legal stability of property transfers involving digital assets, a specific legal framework must be established, either by modifying current starchy legislation or by creating new rules. To develop conceptual approaches and recommendations for unrepealable legal regimes, it is crucial to determine the legal weft of these resources and separate them untied from matching legal occurrences in digital form.
When someone passes away, they may have increasingly than just physical possessions or property. Their trail extends into cyber space as well. Their stuff there on social media, investment sites, and other locations on the internet, may have some financial value, present or future. Family members and tribunal are left with well-healed email messages, social media accounts, and other digital remains that may have considerable personal or financial value. But what happens when loved ones or executors have the required passwords, but have no well-spoken validity to wangle or manage the deceased’s accounts? This is an important issue of digital inheritance in the 21st century. Succession rules have unchangingly unswayable who will, in what way, inherit decedent’s property. When there are only tangible items to inherit, there are no significant problems and if there were any in the past, they were settled a long time ago.
However, a new type of resources – digital resources – have emerged and neither their owners nor legislators know what to do with them in terms of succession. A lot of these resources are stored on on-line accounts, so, without one considers internet service providers (ISPs), who decide what rights a person has over his/her worth and its content, the situation becomes plane increasingly complicated. Humans have piled increasingly information in the past two years than in all prior human civilization and a well-spoken majority of that information is in a digital form. Also, utility providers, phone and internet companies, banks and credit cards have nowadays moved into a digital domain and most of them plane offer incentives if their customers go paperless, both considering it is cheaper and largest for the environment. Most newspapers are now stuff published online, shopping is washed-up on the Internet, people communicate through e-mails or social media. Today, photos, music, and videos are predominantly in a digital form. So, the majority of what was once tangible is now digitized. Digital resources are veritably new and the resources constantly change, and nobody exactly knows what this term encompasses since there are a lot of variegated definitions of these assets. Digital resources are intangible media information stored in computers and other technologies related to computers. The wangle to this information can be mainly using a computer, storage drive, smart phone, internet or server by a third party like ISP. They include e-mail accounts, blogs, social networking sites, personal webpages, documents, videos or photo storage sites and it is likely that this list will be expanded soon.
However, not many people think well-nigh what will happen to these items without they die, let vacated make plans for it. These assets, their ownership, and succession should be legally regulated considering today most of us cannot plane imagine what other types of digital resources will be created soon. Nevertheless, the current law dealing with the inheritance of digital resources is sparse and this problem is intensified if a person who owns digital resources dies automatically, since a lot of very important digital resources are controlled solely by various ISPs, their relationship with worth holders moreover needs to be considered. Now the time has come to think well-nigh the wangle of the departed person’s digital footprint and how far into superhighway their presence reaches. It’s very important to include our online finance during the serendipity planning process. Failure to plan superiority may prevent loved ones, friends, and and plane tribunal from accessing or recovering photos, videos, or plane accessing online accounts. This could moreover uncontrived towards increasingly daring crimes, such as post-mortem identity theft or fraud.
The privacy problem is rather interesting. On the one hand, all of us have our little secrets, and to summarize, when most people die, the first of their last wishes is to have their online history deleted or, at least, not have it fall into the wrong hands. In specimen the social media profiles of individuals who have deceased is left unmonitored, they wilt unshut to cybercrimes like identity theft, trolling and several similar frauds by hackers. It is a known fact that there is nothing known as privacy without death. Now what if a person dies unexpectedly and the legal heirs were forced to resort to some unethical ways to recover his digital data, including having to rent a hacker.
The law, however, is quiet on this issue not just in India but plane abroad. Several US provinces are pondering on the issue that whether families can wangle someone’s digital belongings without they pass away. Laws concerning digital legacy have taken a while to take shape, plane in the U.S. Delaware was the first state to come up with a Fiduciary Wangle to Digital Resources and Digital Finance Act, which allows families to inherit digital resources just like they would physical ones. And the other states are yet to fully reservation up. As in India, there are no such legislation and it seems far away. In such a situation, planning a digital will to assign a legal inheritor to take over your digital existence is the only and weightier alternative. In the present paper the authors have made a systematic study on various issues in Digital Inheritance in Indian Context and moreover in the unshorten globe.
What does the Digital Personal Data Protection Act mean? What are its objectives?
In our rapidly waffly digital environment, the implementation of the Digital Personal Data Protection Act in 2023 marks a major urging in defending individual privacy rights and encouraging good data management practices. This ground-breaking law aims to strike a shielding wastefulness between upholding individual rights and satisfying organizations’ lawful needs for data processing, underscoring the rising significance of protecting personal data.
This Act’s primary goal is to regulate the processing of digital personal data while upholding people’s right to protect their data and whereas the need to handle and use it for legitimate purposes. The Act’s wording is simple and easy to understand, making it wieldy to everyone. The Act moreover aims to create a thorough legal framework for India’s regulation of the protection of digital personal data.
In Singapore, a vital stratum of protection for personal data is established under the Personal Data Protection Act (PDPA). It functions in conjunction with industry-specific legislation and regulations such as the Insurance Act and Banking Act. A number of regulations are outlined in the PDPA that regulate the collection, use, disclosure, and towardly management of personal data in Singapore. It moreover establishes a nationwide ‘Do Not Call (DNC) Registry’ where people may register their Singapore phone numbers to opt out of receiving unwanted telemarketing calls from businesses.
With regard to the obligations of Data Fiduciaries (Organisations that handle data) and Data Principals (Those to whom the data belongs), the proposed law seeks to safeguard digital personal data in India. It seeks to modernize living and merchantry conditions, cultivate India’s digital economy and innovation ecosystem, and enact data protection legislation with the least value of disturbance possible. The legislation is based on seven key tenets: Permission; legitimate, transparent use of personal data; restriction of data usage to specific purposes; minimization of data; verism of data; reasonable storage limits; and peccancy of individuals and organisations for data breaches and violations.
“The law uses straightforward language and little cross-referencing, making it brief, understandable, and practical. It moreover acknowledges the role of women in the legislative branch. People have several rights, such as the worthiness to view details well-nigh how personal data is processed, the worthiness to update or remove data, the worthiness to file complaints, and the worthiness to designate a representative in the event of their demise or incapacity. Establishing security measures, reporting data breaches to the Data Protection Board and unauthentic Data Principals, erasing data when no longer needed or upon consent withdrawal, keeping up a grievance redressal system, and waxy to spare requirements for Significant Data Fiduciaries are all required of Data Fiduciaries.
The measure moreover safeguards children’s personal information by forbidding harmful practises like tracking, monitoring, and targeted razzmatazz while permitting processing with passport from parents. Security, sovereignty, public order issues, research, archiving, statistical reasons, entrepreneurship, and upholding legal rights are among the exemptions included in the measure. The duties of the Data Protection Board include directing the investigation of data breaches and complaints, directing complaints to volitional dispute resolution processes, and recommending to the government that websites or apps belonging to Data Fiduciaries that unceasingly violate the terms of the snout be blocked.”
What happens to your social media finance when you die?
Traditionally only movable and immovable resources are considered for the purposes of inheritance and / or at the time of making a Will. Often intangible movable property such as intellectual property is moreover considered. More recently people have moreover started preparing a Medical Will or a Living Will which provides for the line of medical treatment one would want ( or not want) in specimen of a terminal illness or a terminal medical condition. What is not stuff considered is the disposal of digital resources or digital property upon ones death, perhaps for the want of an enabling Law in India.
The Information Technology Act defines data or information as a valuable windfall as it provides for starchy reliefs such as bounty or punishment as a criminal remedy in specimen the data is unauthorisedly accessed, copied or tampered with. The Act recognizes ownership of data which is an intangible property and hence the same is transferrable, assignable and inheritable. Broadly digital resources can be specified as Email accounts, Social media finance such as Facebook, Instagram, Linkedin, Websites or Blogs, Domain names, to name a few
So the question is, what happens to these the digital property when you die ? Can these digital resources be included in your WILL as a part of Digital Inheritance ?
Another point to consider as to why it is important to manage these digital resources without one’s death is considering while online finance have sentimental meaning to some, they are likely to be valuable to hackers, fraudsters and trolls who’d like to seem your identity, sell your information or use your worth as a ways to launch attacks on other Internet users, like your online friends. The consequences of ignoring our online finance in our wills might lead to difficulties lanugo the line, as it makes the finance vulnerable to exploitation.
How to manage the Digital Resources without you die ?
Most of the Digital Resources that you ‘own’ are in the custody of third parties or intermediaries such as your Cloud Service Providers, Email Service Provider, Social Media Companies , Domain name service Companies to name a few. These third parties or intermediaries will have specific terms and conditions to manage these digital resources upon the death of it owner and these terms will be specified it in Finance Data and Privacy Settings. Thus it is important to transpiration Finance Data and Privacy Settings to your nomination to manage the data in these finance without your demise. So in order to manage the Digital Resources without you die, the provisions and settings have to be configured while you are alive.
You may moreover include the digital resources in the Will to ensure the digital inheritance as per your nomination and Will. Here are a few suggestions.
What can be included in the Will for digital inheritance?
You may segregate to unroll wangle details of Computers, Laptops, smartphones, digital locks , etc to a particular beneficiary
You may unroll ID and Password with directions to wangle details regarding online financial services such as Bank Accounts, Credit Card / Debit Card details, UPI / Online Payment Services and other types of sensitive finance OR prepare a list of all such sensitive finance and requite directions to a particular payee or the Executor to woodcut / tropical all such sensitive online accounts. (Appointment of a digital heir is however unrecognized by law and may have to be supported by a respective bequeathment in the Will. In the sparsity of the Will, all legal heirs will have rights in the Digital Resources as per heirship document or a Succession Document as per provisions of the Indian Succession Act )
You may segregate to manage data residing with third party companies such as Google, Social Media Companies, Cloud Services, Websites and Blogs
How to manage your data in Social Media Finance without your demise?
Some social media services indulge you to designate a person to manage your worth when you die or specify whatever else you might want to happen to your worth upon your death (by managing the Worth and Privacy Settings) Some social media services indulge family members to manage the worth on production of proof of identity and provide proof your death as unelevated :
Facebook and Instagram allows users to memorialize the worth or have it permanently deleted. Memorializing the worth allows someone to share one last post from the worth in specimen they want to share funeral plans or post a tribute, transpiration your profile picture and imbricate photo as well as respond to new friend requests. Any posts shared surpassing the worth was memorialized cannot be edited or removed.
Twitter cooperates with an authorized point of contact to work on deactivating an worth without the user dies. Twitter will not indulge someone to have worth wangle to post anything or make any changes to the account.
LinkedIn has a similar policy to Twitter, in that deceased users’ finance will be sealed out when requested by a friend or family member on production of a death certificate
Google finance (Google , Gmail, YouTube and Google search history) under the settings of “Data and Privacy” allows you to set up the “Inactive Account” full-length so that the worth becomes inactive without Google notices non-usage for the well-set number of months and then allows the designated person have wangle to files / data chosen or decided by you. In the volitional ‘next of kin’ can contact Google to tropical the worth or request data, however, it’s up to Google’s discretion to hand over data.
Microsoft email finance (Hotmail, Live, MSN or Outlook) indulge users to submit a next-of-kin request to segregate what happens to the worth if they die either tropical it out or alimony it active. Microsoft will send them a DVD with the account’s data.
Apple, will indulge loved ones to factory reset devices so that they can use them without the owner dies, but they will not help someone retrieve the device’s data.
Third party Service provides will be extremely cautious surpassing handing over any data of the deceased person to a claimant due to the data protection and Privacy concerns and stringent compliance of the workable Data Privacy laws
Key Regulations, Case Law and Guidelines
- Cryptocurrency and Regulation of Official Digital Currency Bill, 2021 (“2021 Bill”): The 2021 Bill is currently tabled before the Indian Parliament for approval. While not yet available in the public domain, the 2021 Bill is reported to set up an enabling framework for official digital cryptocurrencies to be issued by the RBI, and to prohibit private cryptocurrencies not issued by the State, based on news reports. There is no clarity on the definition of private cryptocurrencies. However, this 2021 Bill has not yet been notified and does not have the effect of law. Prior to the 2021 Bill, the Inter-Ministerial Committee, Government of India had proposed the ‘Banning of Cryptocurrency & Regulation of Official Digital Currency Bill, 2019. However, this bill did not materialize into law.
- Amendment of Schedule III of the Indian Companies Act, 2013: The Ministry of Corporate Affairs has recently issued a notification amending Schedule III of the Companies Act, 2013 and requiring companies to disclose their profits/loss and amount of virtual currencies held, in their financial statements from April 4, 2021.
- Union Budget 2022 – 2023: The Union Budget announcement of 2022-2023 specifies that (i) income from VDAs is proposed to be taxed at 30% and loss from transfer of VDAs cannot be set off against any other income; (ii) ‘tax-deducted-at-source’ of 1% of consideration is proposed to be levied on any payments made in relation to transfer of VDAs, subject to a monetary threshold (this was later included in S. 194 S of the Income Tax Act, 1961); and (iii) recipients of virtual assets as gifts are also proposed to be taxed.
- Guidelines for the advertising of Virtual Digital Assets and linked services: The Advertising Standards Council of India, the advertising
- industry’s self-governing body issued ‘Guidelines for the advertising of Virtual Digital Assets and linked services’ (“Guidelines”), a first of their kind in India in 2022. The Guidelines came into effect on April 1, 2022 and are applicable to all new advertisements on virtual digital assets released or published after this date. The Guidelines set out standards for advertising of VDAs such as the type of disclaimers to include, information that may be advertised/relied on and details to be shared, among other things.
- Other Applicable Regulations: Other Indian legislations that may apply to VDAs and the entities that deal in them would include the Prevention of Money Laundering Act, 2002, the Foreign Exchange Management Act, 1999 and the Income Tax Act, 1961.
- Internet and Mobile Association of India v. Reserve Bank of India (Writ Petition (Civil) No.528 and 373 of 2018): On April 6, 2018, a circular was issued by the RBI which imposed a prohibition on dealing in virtual currencies (“Circular”). However, in March 2020, the Supreme Court of India quashed this Circular on the grounds of proportionality as the RBI was unable to show semblance of any damage suffered by its regulated entities due to such virtual currencies. This judgment of the Supreme Court does not in itself contemplate whether cryptocurrency ought to be banned in India or not. In light of the Supreme Court’s decision, the RBI issued a clarification in May 2021 that the Circular was no longer in effect.
Significant Reports
- One of the earlies reports on VDAs was the Inter-Ministerial Committee Report of 2017, available here. This report was drafted to analyze the potential application of VDAs and distributed ledger technologies in the trade and finance sectors in India and propose actions to be taken with regard to VDAs.
- The SG Garg Committee Report of 2019, available here, set out the many issues (regulatory and otherwise) related to cryptocurrency and legalizing the same in India.
- More recently, the RBI’s Financial Stability Report of 2021-2022, accessible here, analyses crypto assets and their possible impact on the Indian economy. The report states in its preamble that “Cryptocurrencies are a clear danger. Anything that derives value based on make believe, without any underlying, is just speculation under a sophisticated name.
- The RBI on October 07, 2022 issued a Concept Note on Central Bank Digital Currency, available here. This note sets out a detailed proposal by the RBI regarding the rollout of CBDCs in the form of a digital Rupee, the key features of CBDCs and the potential impacts, negative and positive, that the introduction of CBDCs could have in the Indian economy. The note also references cryptocurrencies, commenting on how the proliferation of crypto assets can pose significant risks related to money laundering and financing of terrorism, be a threat to monetary policy objectives and lead to creation of a parallel economy. The note also states that cryptocurrency could adversely affect the enforcement of foreign exchange regulations, especially the circumvention of capital flow measures.
- Conclusion
The Digital Personal Data Protection Act, introduced in 2023, is a significant step in safeguarding individual privacy rights and promoting responsible data management practices. It aims to balance individual rights with legitimate organizational data processing needs, emphasizing the importance of personal data protection. The Act establishes a clear legal framework for digital personal data protection in India, addressing the roles of Data Fiduciaries and Data Principals. It is based on seven key principles, including consent, transparent data use, data minimization, data accuracy, storage limits, and accountability for data breaches. Digital assets, such as networked system assets, software assets, and hardware assets, can create legal challenges as traditional civil rights objects transition into electronic or digital formats. Solutions for digital inheritance include amending existing laws, passing new federal legislation, and enabling users to determine the fate of their digital assets after death.
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