What Happens to Your Online Data When You Die -- Terms and Conditions

Within the past week Facebook announced a new legacy contact feature. Here is a quote from the announcement:

Facebook is a place to share and connect with friends and family. For many of us, it’s also a place to remember and honor those we’ve lost. When a person passes away, their account can become a memorial of their life, friendships and experiences. 

Today we’re introducing a new feature that lets people choose a legacy contact—a family member or friend who can manage their account when they pass away. Once someone lets us know that a person has passed away, we will memorialize the account and the legacy contact will be able to: 

• Write a post to display at the top of the memorialized Timeline (for example, to announce a memorial service or share a special message)
• Respond to new friend requests from family members and friends who were not yet connected on Facebook
• Update the profile picture and cover photo

This new "feature" addresses a real problem: who owns the rights to the content you put online and what will happen to it once you die? Of course, this includes a huge amount of online digital genealogy in files and family trees.

One of the facts of life on the Web is the proliferation of "Terms and Conditions." Almost every commercial website has some sort of legal jargon limiting the developers' liability. This type of agreement used to be called an adhesion contract. Originally this type of contract was printed in very small print, on the back of theater tickets, car parking receipts and other commercial receipts or tickets. The adhesion contract (i.e. stuck to the back or bottom of the document) attempted to limit the liability of the enterprise. For example, if you parked your car in the parking lot, you couldn't make a claim against the owner of the lot for vandalism. Many different situations that arose ended up in the court system and a whole body of case law resulted interpreting these contract provisions.

The formal definition of an adhesion contract reads as follows:

A type of contract, a legally binding agreement between two parties to do a certain thing, in which one side has all the bargaining power and uses it to write the contract primarily to his or her advantage.

Generally, the challenges to these "adhesion" contracts were based on the idea that a business should not be able to impose contract terms on its customers without a "meeting of the minds," one of the basic prerequisites for making a contract. (after more than forty years, I can still hear echoes of my law school contract class in my head). However, this concept of mutual agreement has been severely eroded over time and now, almost uniformly, courts allow one-sided contracts in many commercial cases. The way they get around the contractual requirement of negotiated provisions is to use a legal fiction: that by undertaking to use the commercial product (i.e. website or app) you are agreeing to all the terms of their contract. Period.

OK, now that would seem to be some reason for concern especially now with millions of websites and millions of programs (apps). But there are so many of these "Terms and Conditions" which appear before you even get a chance to work with a program (app) or website, that most of us just click through routinely. For all you or I know, we have just signed over our life savings to the company, however, there are some limitations on the scope of these contracts. This type of contract is usually limited to what would be reasonably expected in such a transaction. The legal term for this is "unconscionability," but in the case of genealogy apps or programs, the results of the adhesion contracts (terms and conditions) can be surprising.

If you do take the time to read some of these Terms and Conditions agreements, which are usually available in a link in very small type somewhere on the website, you may become very concerned. Many of the provisions of these contracts are expansive in their scope. Some of the websites claim an ownership interest in or even a copyright to all the material on the website, even when the user uploaded the content, or when the content is very old and obviously in the public domain. I hesitate to copy any of the provisions from any of the websites and reproduce them in a blog post because of the strong copyright claims expressed in the agreements themselves. It would also be unfair to pick on any one company, since they all have similar claims in their Terms and Conditions. I even have a disclaimer in the tabs at the top of my blog.

From a legal standpoint, the claims made by the companies creates a quandary. When the website user dies, who "owns" the content. For example, assume that someone puts all of their family information on a subscription website, including photos, stories and documents. If the person dies, who can work with or retrieve the information? In many situations, this issue may be obscured by the need for a formal probate action to appoint a legally constituted estate executor, administrator or personal representative. One major online content supplier states that the content cannot be accessed by the originator's heirs without the appointment of a formal administrator, personal representative or other legally constituted representative. This would force the heirs to go to court even if that were not otherwise necessary for the administration of the estate.

If you get involved in trying to challenge one of these adhesion contracts, you would have to know a whole lot more about the subject and learn a pile of legal jargon just to understand the issues. There is a plethora of discussion online about this topic and it is the subject of a constant stream of articles in legal journals. Here is a sample article out of the stream. You can use the terminology of the article to search for more information, if you care to do so.

ENFORCEMENT OF CONTRACTUAL TERMS IN CLICKWRAP AGREEMENTS: COURTS REFUSING TOENFORCE FORUM SELECTION AND BINDING ARBITRATION CLAUSES

The title to this article refers to a "clickwrap" agreement. That is, an agreement that is imposed if you click on a button etc. that says you agree with all the provisions of the terms and conditions imposed on the use of the website or program.

There is no simple solution to this type of problem. From the standpoint of a genealogist whose entire life work may be online in a database, it is imperative that the genealogist makes adequate provisions for the disposition of the online material in event of his or her death. Stay tuned for the next installment dealing with what you should do to prepare for the inevitable.