Legal Implications Triggered by an Internet User’s Death: Reconciling Legislative and Online Contract Approaches in Canada
As significant parts of our lives now take place in the virtual realm, many Canadians will leave behind a trail of digital data upon their deaths. This raises questions as to how to protect a deceased Internet user’s privacy, while also accounting for efficient estate administration of digital assets where such assets are valuable for heirs. Clarity as to what happens to such data upon death is lacking in Canada. In the absence of legislative guidance, online terms of service agreements often determine the fate of our digital data. The author argues that a combined approach of both statutory intervention and strengthened digital service provider policies would be beneficial to protect the interests triggered by an Internet user’s death. Legislative default rules should provide a baseline protection balancing post-mortem privacy and fiduciary access to digital assets. Online tools designed to give the account holder greater control over the fate of one’s digital assets, rather than imposing unilateral terms, should also enhance legislative rules by acknowledging that different types of digital data require bespoke legal treatment.