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Australia ‘10 years behind’ on laws for digital assets
The number of dead Facebook members will soon outnumber the living ones, but when it comes to the handling of our affairs, digital assets such as online accounts are often overlooked, as the law is yet to catch up.
Jerome Doraisamy
According to Aitken Partners principal Ines Kallweit, lawmakers must catch up to the fact that a lot of us no longer keep books on shelves and photos in shoeboxes.
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Digital assets are not limited simply to online accounts, but also include digitally stored content on our home computers, USB flash drives, CDs, DVDs and mobile phones, and consist of our photos, videos, text documents and other such files, Ms Kallweit explained.
Furthermore, she noted money is now transferred to anyone with an email address using PayPal or cryptocurrencies, but at present, there are no uniform policies or laws to deal with the vast number of assets in the digital sphere.
With more and more people having online assets, Ms Kallweit said the time is now for legislators to look at this issue.
“Australia is about 10 years behind developments in other jurisdictions like the US and Europe, which already have some uniform laws,” she said.
“NSW, as the first Australian jurisdiction, has only recently referred the question as to whether new laws are required to deal with digital assets after death to its Law Reform Commission.”
It is an especially pertinent issue, given that many of the digital platforms we use are not based here in Australia, according to Ms Kallweit.
“With the internet reaching people across the world, the business hosting the ‘asset’ could be located anywhere, and Australian laws may have limited application,” she said.
“Another issue is that the asset may not be ‘owned’ in the traditional sense but may only be accessible through a license (for example, an online music library) or a password (such as cryptocurrency).”
In light of this, Ms Kallweit said lawyers must be prepared to assist clients with the distribution of all assets when managing wills and testaments.
“Lawyers should draw their clients’ attention to the issue of digital assets and discuss what plans the client has for each asset,” she noted.
“Clients who wish their executor to deal with their digital assets should leave detailed instructions, including the URL and passwords.”
This is an area of law that demands attention, Ms Kallweit argued.
“Although digital assets have been around for a while, not many estate practitioners are addressing the issue with their clients,” she concluded.
“Anyone who is concerned about their digital assets should seek advice from an accredited specialist with experience in the area.”
