Today on Hull on Estates, Noah Weisberg and Nick Esterbauer discuss the role of social media in the context of Estate Litigation.
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Later this week, House Bill 432 will come into effect in Ohio to update state estate and trust administration law. One of the most notable updates is the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act, along with corresponding updates to Ohio’s Power of Attorney Act.
The American Revised Uniform Fiduciary Access to Digital Assets Act is intended to formalize the authority of attorneys for property and estate trustees to obtain access to digital assets for deceased or incapable users. Prior to its implementation in American states (and in other jurisdictions in which comparable legislation has not yet been introduced), the intervention of the courts has often been required to grant fiduciaries with access to information and assets stored electronically. There continues to be some debate as to whether an attorney for property or estate trustee, authorized to administer tangible property, also has the authority to manage digital assets without legislation and/or terms of the Power of Attorney or Will explicitly extending this authority.
Interestingly, the Revised Uniform Act has been endorsed by Google and by Facebook, both platforms on which a great deal of the world’s digital assets are stored. In 2016, 13 states introduced the Revised Uniform Fiduciary Access to Digital Assets Act. With the introduction or enactment of the Revised Act in another 24 states since the beginning of 2017 alone, it is clear that state legislatures and online service providers alike agree that amendments to the law in recognition of the growth of technology is required to clarify the state of the law of digital assets and fiduciaries.
The Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act (2016) this past summer. While the uniform acts of Canada and the United States share a number of similarities, there are several important distinctions, which will be highlighted in Thursday’s blog post.
Thank you for reading,
Other blog posts that may be of interest:
When disputes arise regarding a loved one’s Estate tensions often mount, but don’t go venting your frustrations on social media!
In recent decision of the British Columbia Supreme Court, Pritchard v. Van Nes, 2016 BCSC 686, the Honourable Justice Saunders found the defendant liable to pay $50,000 in damages for defamation, plus another $15,000 in punitive damages as a result of posts made to Facebook.
The plaintiff was a school teacher. He and his family became neighbours of the defendant in 2008. Tensions between the plaintiff and defendant began in 2011, when the defendant installed a large fish pond along the rear of her property. The structure was on two levels, and had water flowing over two waterfalls. The plaintiff began complaining to the defendant about the noise created by waterfalls, and their relationship began to deteriorate. In the years that followed, there were numerous disagreements concerning the defendant’s dog defecating on the plaintiff’s property, parking issues, trespassing and loud parties.
The defendant chose to vent on Facebook in a manner that was considered defamatory. She identified the plaintiff by his first name, his occupation, the school and the school district in which he worked, and by his position as her next-door neighbour.
The defendant’s friends commented, liked and shared the post with others. One friend even went so far as to send the plaintiff’s employer an email advising them of the allegations. As the defendant had over 2000 friends on Facebook, the posts quickly went “viral”.
This had a devastating impact on the plaintiff’s career as a teacher.
Ultimately, Justice Saunders found the defendant liable for not only the defamatory comments she had personally posted to Facebook, but also the republication of her comments by her Facebook friends (including by way of email) and any new defamatory comments made by her Facebook friends.
Justice Saunders held that the republication through Facebook “was the natural and probable result of the defendant having posted her defamatory remarks” (para 84). The defendant had “impliedly authorized the republication”, and ought to have known that republication was not limited to social media only. Accordingly, the defendant was liable for republication through other mediums, including email (para 87).
Given the seriousness of the allegations and the extent of the harm suffered, Justice Sunders awarded the plaintiff the plaintiff general damages for defamation of $50,000 and punitive damages of $15,000. He also found the plaintiff was entitled to his costs.
Liability for third-party defamatory comments on one’s personal account, whether on Facebook or another social media platform, is still an emerging legal issue in Canadian law. The prevalence of social media renders this decision applicable to practically every area of the law. It will be interesting to see how it is applied in the future.
Thank you for reading,
Other articles that might be of interest:
The online social media giant Facebook has taken steps to respond to the concerns about one’s personal account management upon death. Up until recently, the accounts of members that passed away were either “memorialized” or entrance into the accounts were locked.
On Thursday, February 12, 2015, Facebook introduced a feature entitled “legacy contact” that allows a user to designate another person to manage parts of their account after they die. The member is also given the opportunity to simply have their account deleted altogether after death.
The following features can be utilized by legacy contacts:
- responding to incoming friend requests
- updating the profile and header image
- downloading an archive of a deceased member’s photos
Legacy contacts, however, are not able to view private messages.
The new setting is presently only available to residents in the United States but eventually will be introduced in other countries. Currently, our Security Settings on Facebook in Canada allow members to designate 3-5 friends as “trusted contacts” that can assist if members have trouble accessing our accounts.
The new ‘legacy contact’ setting could become a helpful tool for people planning for the future. However, it is only one aspect of digital estate planning. Facebook is only one social media site, and many people are members of at least 2 or 3. Some tips on how to address modern digital accounts and assets can be found here, here and here.
Thank you for reading,
In the days prior to the evolution of the Internet, planning and administering an estate was relatively simple as the physical belongings of the deceased could be carefully sorted through, packaged, and divided according to the Deceased’s testamentary document or the applicable legislation.
In the days since the Internet has become a common household tool, planning and administering an estate has not been so easy. In a study commissioned by Remember A Charity, The Dying in a Digital Age, it was discovered that four in five people own digital assets, but only nine per cent have considered how these will be distributed upon their death.
According to the study, the nation’s digital music collection is worth an estimated £900 million alone.
Three quarters of those surveyed for the study indicated that their digital music and photo collections had strong sentimental value, while eight out of ten said their digital assets were financially valuable.
Rob Cope, director of Remember A Charity said: ”Bank accounts, music and photograph collections are increasingly stored online…meaning families will wave goodbye to a small fortune if details are not passed on.”
There is now an entire cyber existence that both the Deceased and Trustees need to turn their mind to when planning or administering an Estate. For instance, what will become of Facebook, Twitter, Flickr and PayPal accounts? One easy solution is to subscribe to a website called Legacy Locker. Legacy Locker was created in 2009 and it maintains a master list of user names and programs for online bank accounts, social networking sites and document repositories.
In the digital era, it is important that we consider and make arrangements for how our digital assets will be distributed, and for estate planners, it may be just as important that you consider including in your questionnaire or checklist, a question that forces a client to turn their mind to consider their digital assets.
Thank you for reading, and have a great weekend.
Rick Bickhram – Click here for more information on Rick Bickhram.
Given the prevalence of scepticism amongst lawyers (see my earlierblog), it is entirely in keeping with character for lawyers to be slow to openly embrace social media.
Judging from a recent study, it would seem that this might be doubly so for Canadian lawyers. In this article about Digital Life, the world’s largest study into consumers’ digital behaviours and attitudes ever conducted, the following observations were made about Canadians’ online activities:
- Canada lags in digital engagement.
- Canadians aren’t much for blogging.
- Canadians are average picture-sharers.
- Canadians do less social networking, more email.
- Canadians spend less time on social networking sites on their mobile devices.
- Canadians will be slower to transition social networking on mobile phones.
- With an average of 150 friends in our social networks, Canadians are not as "friendly" as consumers in some other countries.
If the President of the United States can win an election based in part on social media strategy, then even the most sceptical of lawyers cannot deny there just might be something to it. Barack Obama has so many friends on facebook and contacts on LinkedIn that even I am a 3rd level connection.
We have also seen this week much texting and tweeting from the courtroom during the sentencing hearing of Russell Williams. Justice Robert Scott agreed to allow the media to use electronic devices for the purpose of taking notes but said any use of laptops, handheld communications or recording devices must be done an a way that was not obtrusive to the court process.
Social media is a pretty big wave. It is changing our behaviour and it is here to stay. Whether you are a Canadian, a lawyer, or both, you might as well just hang on and enjoy the ride!
Sharon Davis – Click here for more information on Sharon Davis.
Serving on a jury is one of our most fundamental civic duties. It can, however, pose hardships on those individuals summoned to the jury box, particularly when one considers the financial impact of giving up your income while acting as a juror.
Despite the financial hardship associated with jury duty, it is a serious undertaking and should be seen as such. As a juror, you are required to play an active role in the administration of justice and, together with other citizens, you will be required render a verdict of guilt or innocence in a criminal matter.
A recent article in the Globe & Mail with the above captioned-title underscores the importance of taking jury duty seriously.
A Michigan woman, summoned to be a juror, posted on her Facebook page that it was “Gonna be fun to tell the defendant they’re GUILTY”
Alarmingly, her post was found by the defence team BEFORE it had even started its case.
The next day, the juror found herself removed from the jury. Judge Druzinski told the Michigan woman that it did not matter whether she used Facebook to express an opinion or simply spoke to a friend about the case.
“You violated your oath. … You had decided she was already guilty without hearing the other side”
By October, 1, 2010, the Michigan woman must submit an essay about the 6th Amendment to the U.S. Constitution and pay a $250 fine.
Have a great weekend!
Kathryn Pilkington – Click here for more information on Kathryn Pilkington.
Social Media is not a fad and is fundamentally changing the ways we interact and communicate with others. Two of the more popular social networking websites, Twitter and Facebook, recently implemented policies that set out guidelines regarding a user’s account once they have died.
Under Twitter’s policy, a person can either request that the deceased user’s account be removed entirely or receive an archive of all the deceased user’s tweets offline once they have provided Twitter with the following information:
1. Your full name, contact information (including e-mail address), and your relationship to the deceased user;
2. The username of the Twitter account, or a link to the profile page of the Twitter account.
3. A link to a public obituary or news article.
By comparison, Facebook provides two options: either removing the deceased’s account, or "memorializing" it.
Memorializing a person’s account “means the account lives on in Facebook’s system, and other Facebook members can interact with the deceased member’s wall. What’s interesting about what Facebook put into place, compared to Twitter, is that there’s still a great deal of emphasis put on privacy and what can be done with the information that user has posted to the service. For instance, only that user’s friends can still visit the profile or find it in Facebook’s public search tool. And Facebook goes so far as to remove all status updates and contact information.”
It is hard to imagine that Facebook and Twitter will remain an important part of our lives many years from now, but Facebook has grown from 300 million to 500 million users in less than a year, with few signs of that slowing down. This is an indication that “policies about a user’s death can end up being just as important as those you agree to when you first sign up.”
Thank you for reading, and have a great day.
Rick Bickhram – Click here for more information on Rick Bickhram.
Even as Canadians, we cannot help but get caught up in the media frenzy surrounding the U.S. Presidential State Primaries. In the last couple of months, the dominating story has been the campaign between Hillary Clinton and Barack Obama for the Democratic Party nomination.
Last week, Michael Geist, noted technology law professor, columnist, and blogger wrote an interesting article about how Barack Obama has courted the youth vote by embracing technology, especially social networks, like Facebook, MySpace, and YouTube. Obama’s approach appears to have worked as a social networking tool. The official Obama Facebook support page has over 500,000 friends versus Hillary’s 100,000 friends.
Aside from using technology to reach voters, Obama has also taken positions on issues that are important to young voters, such as net neutrality legislation and digital copyright, subjects most politicians, including Canada’s mainstream political parties fail to address.
From the sidelines, it will be interesting to see how the primaries work out and if more Facebook friends results in more delegates. I would encourage anyone interested in technology, privacy law, and social media to regularly read Mr. Geist’s blog.
Thanks for reading,