Open Access Research Article
DIGITAL AFTERLIFE: CRAFTING LEGAL FRAMEWORK FOR INHERITING VIRTUAL REALM BY: DIVYANSH JAIN
Published Paper
Article Details
DIGITAL AFTERLIFE: CRAFTING LEGAL
FRAMEWORK FOR INHERITING VIRTUAL REALM
Phone: +91 88264 64147
Abstract
"It
is pertinent to note that India does not have a dedicated law on digital
inheritance, which is indeed unfortunate, given the rapid adoption of and
reliance on the digital data by Indians,"[1].
As the digital inheritance concept is contemporary concept and, there is no
legislation currently in India it becomes paramount to study question of
inheritance of how the assets are transferred. The paper attempts to showcase
the role of ISPs, social media platforms, and several factors which necessitate
the creation of a legislation. It starts with defining digital assets and
briefing about the current position of digital inheritance law in India. The
paper moves on to explain the problems associated with absence of legislation
and bringing in the parallel with the countries having digital inheritance
laws. Towards the end, the paper poses recommendations, and suggestions for
potential legislation into being and thus answers the question of how the
legislation would effectively address the current challenges and what is the
imperative for development of such a legislation.
Key
Words: Digital Wills, Inheritance, Digital Assets, Digital
Inheritance Law, Intestate, Testamentary, Estate Planning.
Introduction
In the contemporary era, there exists
a multitude of forms through which individuals possess their assets, extending
beyond physical manifestations to encompass digital assets. There stands no
specific and rigid definition of Digital Assets which makes it difficult to
classify anything on digital platform as an asset as no governing legislation
currently regulates such assets. However, a digital asset may be defined as
anything that are stored digitally and have a unique identity, belonging to a
legal person, and that can be used to realize their value.[2]
The digital platforms have changed the biological setting of death in the
society because of the existence of digital accounts and profiles on digital
platforms even after the death of an account holder. It often happens that the
people are not aware of the number of accounts or digital assets they own which
disables them from efficient estate planning. Such problems bring in highlight
the need for digital estate planning. Digital estate planning refers to making
provisions for the allocation and delegation of authority to safeguard and
manage digital assets. However, to execute the digital estate planning, there
is a need for an instrument for enactment. In the case of physical property,
this instrument is the Will governed by the Indian Succession Act, 1925[3]
and the Indian Evidence Act, 1872[4]
but, for digital assets, there is no such legislation present.
Current
Legal Procedure of Inheritance
Succession of property is made in two
ways:
1. Testamentary Succession
2. Intestate Succession
As per the current position of Indian
laws with regard to inheritance of digital assets is such that the intestate
property may have problems and it may be difficult to regulate the inheritance
due to absence of any legislation. However, to overcome the concerns of
intestate property, one may suggest the alternative of creating a Digital Will
as typically a will helps in the management of the assets after the death.
Currently, as per Section 63, Indian Succession Act, 1925[5],
will is to be attested by two or more witnesses in a testator’s presence and
the testator (person making will) acknowledges that he has signed the will
himself which is communicated to the witnesses. Read along is Section 68,
Indian Evidence Act, 1872[6]
which requires that if a document is required to be attested by law, it shall
not be used as evidence until one attesting witness is called for the purpose
of proving the execution of the will. These requirements mandated by the
above-mentioned statutes which requires physical presence of the witnesses and
of the testator are only possible in physical scenarios and not online which
deprives us of the hope towards the digital wills and protection of digital
assets.
However, one might argue that the
existence of the digital signatures may substitute the mandating provision of
the physical presence of the testator and witnesses by using the digital
signatures on the will thus, creating them digitally possible and calling them
digital wills. Digital signatures are defined under Section 2(p) Information
Technology Act, 2000[7] as
authentication of any electronic records by a subscriber by means of an
electronic method or procedure in accordance with provisions of Section 3,
Information Technology Act, 2000[8].
However, as per the current law under Information Technology Act, 2000, wills
which are defined under Section 2(h), Indian Succession Act, 1925[9]
are not to be governed by the Information Technology Act, 2000 which is
mentioned as per Section 1(4), Information Technology Act, 2000[10].
Summing up, the laws in India don’t allow for Digital Wills to be recognized
which means that the testamentary succession of digital assets is not possible
in India.
Hindrances
by Absence of Legislation
The testamentary succession is not possible
in India and, digital inheritance being a contemporary concept is not being
talked about in the religious texts. Due to no legislation the bigger question
shall be addressed which is with regards to the intestate digital property
because the issues such as identity theft, copyright infringement, etc. arise
to the digitally dead accounts and when they are not transferred to the legal
heirs as they should have been. With the digital life, privacy becomes another
concern of the people because each individual has secrets which are unknown to
others during their lifetime and after their death, the invasion of their
privacy becomes possible and can be a matter of concern due to the possible
misuse of data.[11] As
Internet Service Providers (ISPs) assume the role of intermediaries between
digital assets and their respective holders, individuals are occasionally
deceived by the arbitrary terms and conditions set forth by these
providers. The absence of regulatory laws governing such providers, and
their supervision over the relationship between ISPs and holders, in terms of
succession and the transfer of legacy of assets becomes apparent.
Due to absence of digital inheritance
laws, several social media platforms have started to bring provision to add
their legal heirs or in other words, the people who can access their accounts
after the account holder’s death. Elaborating on the social media platforms,
the celebrities have social media handles which have a worthy amount of income
and after their death it becomes difficult to decide as to who manages their
accounts further as these celebrities have prestigious reputation thus, the
accounts have to be in good hands. As an illustration, Facebook has introduced
a provision that enables account holders to designate individuals, at their own
discretion, to assume the management responsibilities of their
accounts. Similarly, Google permits the addition of up to ten legacy
contacts who will receive notifications via email should the account remain
inactive for a period ranging from three to eighteen months.[12] These
provisions established by social media platforms indirectly safeguard the
rights of individuals in cyberspace, particularly in nations like India where
there is a dearth of legislation addressing digital inheritance.
In 2019, the report of Steering
Committee on Fintech had recommended to re-engineer the legal processes in
digital world.[13] In its
recommendation, it said that the department of legal affairs should review the
legal processes with respect to the financial services and also consider
amending the permits of usage of the digital alternatives in cases, where the
application of IT Act, 2000 is prohibited as per the 1st schedule of
the IT Act, 2000, such as power of attorney, wills, etc. Consequently, it becomes
evident that a comprehensive legislation for digital inheritance is necessary
to address these concerns.
Drawing
International Comparisons
In other countries such as US, there
exists a legislation named Revised Uniform Fiduciary Access to Digital Assets
Act (RUFADAA), which for the first time has recognized the existence of digital
property as a property right in the same manner as in other rights in real and
tangible personal property[14].
RUFADAA was implemented to dictate how the assets of a dead individual would be
managed. The act allows the owner of the assets to grant fiduciary access to
the digital accounts upon the owner’s death or incapacity.[15]
Even in countries like UK, as per a study, it is revealed that the majority of
the people online have neither planned anything for the eventuality and nor are
aware of such an arrangement. Drawing on same lines, if a country like UK lacks
awareness on digital legacy and inheritance then, in case of India which has
such a humongous population and an ever-increasing number of people engaged on
internet it would be difficult to manage the issues arising among the people
due to lack of procedural law for inheritance and thus, creating conflicts
regarding the inheritance of digital assets.[16]
Prescriptive
Measures
The primary purpose for introduction
of digital inheritance legislation is the Dispute Resolution which is offered
by the legislation as it shall include the various resorts to the violation of
any right with respect to digital inheritance and any other violation concerned
to the transfer of digital assets. The legislation must be inclined towards
speedy disposal of suits and for the same it may even direct the establishment
of courts that specially deal with the disputes relating to digital assets inheritance
if it deems necessary. Existence of a comprehensive legislation would provide
clear definition of digital assets and thus classify as to what qualifies as a
digital asset and what does not. This would aid in the characterization of each
digital asset and the delineation of ownership rights associated with them. By
acknowledging the validity of digital wills, the legislation would safeguard
digital assets and prevent fraudulent claims on dormant digital assets.
A digital inheritance legislation
will not only regulate the Digital Will and its execution but, also, it would
define the fiduciaries, as in case of the US Legislation, who shall have the
access to the digital assets. It can also mention the rights and
responsibilities of a fiduciary who is an original, additional, or successor
personal representative, agent, trustee.[17]
The pre-2005 amendment position of the Hindu Succession Act[18]
predominantly adhered to a patriarchal framework, thereby necessitating the
establishment of a comprehensive legislation for digital inheritance in order
to safeguard the interests of women in society. By doing so, this
legislation would effectively mitigate the potential adverse impact of societal
norms on women's rights and provide them with the necessary guarantees.
Another advantage of implementing
digital inheritance legislation in India is that it would enable the country to
align with global norms and fulfil the suggestions put forth by the Steering
Committee in 2019. Furthermore, in light of technological advancements, it
is imperative for a nation's legal framework to remain adaptable to these
changes. This is because society often identifies loopholes within
emerging trends and exploits them to their advantage. To counteract this,
it becomes necessary to establish laws that regulate such trends. Earlier, in
India inheritance tax was applicable but, was then abolished in 1985. However,
to the contrary, digital assets could be taxed upon their inheritance for
addressing issues like capital gain tax concerning the cryptocurrencies or any
other digital investments and also to ensure responsible use and management of
digital assets.
Conclusion
Although, the process of bringing in
a new legislation is a slow process but, it in the initial stage it reduces the
issues to a certain extent and later amendments can be brought about in the
legislation to cope up with the loopholes. India has however, hinted towards
the meeting of global standards and coping with the recommendation of the
steering committee as the Ministry of Electronics and Information Technology
has proposed the ‘Digital India Act 2023.’ This proposed act has hinted towards
the recognition of digital wills as per the brochure because the goal of the
proposed act lists right to digital inheritance as one of the rights but, the
act has not yet come into comprehensive statutory form which means that there
is a need for deliberation for the structuring of the right as the brochure
does not mention anything of the operation of the legislation but, just the
right to digital inheritance. Also, the emergence of a legislation let alone is
not beneficial but, the awareness amongst the people about their rights and
responsibilities with respect to digital assets is of utmost importance. The
above-mentioned recommendations and current problems of inheritance indicate
the pressing need of a legislation for digital inheritance.
* A 3rd Year Bba Llb
Student At Jindal Global Law School, O.P. Jindal Global University.
[1] Nishant Arora, German Ruling A
Real-Life Lesson For India On Digital Inheritance, Moneylife, Jul 16, 2018,
Https://Www.Moneylife.In/Article/German-Ruling-A-Real-Life-Lesson-For-India-On-Digital-Inheritance/54696.Html.
[2] Shalabh Agarwal & Asoke Nath, A
Comprehensive Study On Scope And Challenges In Digital Inheritance, 7 Int’l J. Sci. Rsch. Comput. Sci. Eng’r & I.
Tech. 98, 99 (2021).
[3] Indian
Succession Act, 1925.
[5] Indian
Succession Act, 1925, §63.
[6] Indian
Evidence Act, 1872, §68.
[8]
Information Technology Act, 2000, §3.
[10]
Information Technology Act, 2000, §1(4).
[11] Shalabh Agarwal & Asoke Nath, A
Comprehensive Study On Scope And Challenges In Digital Inheritance, 7 Int’l J. Sci. Rsch. Comput. Sci. Eng’r & I.
Tech. 98, 99 (2021).
[12] Shalabh Agarwal & Asoke Nath, A
Comprehensive Study On Scope And Challenges In Digital Inheritance, 7 Int’l J. Sci. Rsch. Comput. Sci. Eng’r & I.
Tech. 98, 102 (2021).
[13] Department Of Economic Affairs
& Ministry Of Finance, Report Of The Steering Committee On Fintech
Related Issues, Government Of India, (2019).
[14] Prashant Mali & Aswathy
Prakash G, Death In The Era Of Perpetual Digital Afterlife: Digital Assets,
Posthumous Legacy, Ownership And Its Legal Implications, Nat’l L. Sch. J. 124, 131 (2019).
[15] Alanna Pearl, Everything You
Need To Know About Including Digital Assets In Your Estate Plan, Linkedin,
Aug 2, 2021,
[16] Prashant Mali & Aswathy
Prakash G, Death In The Era Of Perpetual Digital Afterlife: Digital Assets,
Posthumous Legacy, Ownership And Its Legal Implications, Nat’l L. Sch. J. 124, 132 (2019).
[17] Revised
Uniform Fiduciary Access To Digital Assets Act, §2(14)
[18] Hindu
Succession Act, 1856.
Article Information
DIGITAL AFTERLIFE: CRAFTING LEGAL FRAMEWORK FOR INHERITING VIRTUAL REALM BY: DIVYANSH JAIN
Authors: DIVYANSH JAIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/25
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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