On 31 August 2017, Author Sir Terry Pratchett's Hard Drive Was

Do we have a right to be forgotten?

On 31 August 2017, author Sir Terry Pratchett’s hard drive was crushed by a steamroller in accordance with his wishes. Louise Lewis TEP examines the legal issues surrounding this unusual request.

Sir Terry Pratchett was an English author famous for his fantasy novels including the Abominable Snowman and the Discworld series incorporating such well known novels as “mort”, “small gods” and “men at arms”. He died in March 2015 following a long battle with Alzheimer’s disease. Terry had requested that “whatever he was working on at the time of his death [be] taken out along with his computers to be put in the middle of a road and for a steamroller to steamroll over them all” (fellow fantasy author Neil Gaiman as reported in the Guardian Wednesday 30 August 2017). On August 25 2017, this wish was carried out and photos of Terry’s hard drive were posted before and after being steamrolled on his official Twitter feed (“@ Terryandrob”).

What if anything did his personal representative need to consider before proceeding with this request?

There is almost certainly likely to be an element of copyright in the digital works stored on Terry’s hard drive and on his death, copyright in those works would have passed to his personal representative. The personal representative would then hold those rights together with the other assets of Terry’s estate for the benefit of his beneficiaries. The primary purpose of copyright law is to reward authors for the creation of original works and copyright could have lasted for 70 years following Terry’s death. If there were works within the hard drive that would have been capable of commercial exploitation, those works could have been printed and published, with the resulting royalties being paid to Terry’s personal representative for onward payment to his beneficiaries. His personal representative would therefore have had to consider what loss there may be to those beneficiaries as a result of the hard drive being destroyed and be confident that that loss was justified as a result of Terry’s expressed wish.

Confidentiality

An executor owes a duty to the beneficiaries of an estate to exploit the estate as far as possible for the benefit of those beneficiaries. If destruction of an estate asset is not in the best interests of those beneficiaries, arguably, the duty to the beneficiaries overrides any obligation owed to the deceased. There is of course the possibility that a deceased may wish to keep confidential any information that may impact on that reputation. It could, for example, be possible that the value of copyright in the deceased’s other artistic works would be diminished if their reputation is impacted. It is not suggested that this is applicable in the case of Terry Pratchett but is nonetheless a consideration for personal representatives.

Personal representatives generally assume control over disclosure of confidential information relating to the deceased following a death. In Edwards-Moss v HMRC [2016] UK FTT 0147 (TC), the tax tribunal confirmed that a deceased had a right to privacy and that her family had a right to expect that her medical records would remain confidential after her death. This is in accordance with Article 8 of the European Convention on Human Rights, which outlines an individual’s respect of their private life.

In trust law, trustees can rely on the fact that a beneficiary has no entitlement to information as of right. The trustees have discretion and conduct a balancing exercise before releasing information to any beneficiary. Their general fiduciary duty is to keep the beneficiaries informed and to provide accounts. In the privy council case of Schmidt v Rosewood [2003] UK PC 26, Lord Walker stated “a beneficiary’s right to seek disclosure of trust documents, although sometimes not inappropriately described as a proprietary right, is best approached as one aspect of the court’s inherent jurisdiction to supervise (and where appropriate intervene in) the administration of trusts”.

If any information stored electronically is of monetary value and the deceased indicates to personal representatives that that should be destroyed, this will conflict with the duty of the personal representative to collect and preserve the deceased’s assets (section 25 Administration of Estates Act 1925). In any case where a personal representative is unsure as to which duty should take priority, it is always open to a personal representative to make an application to the court for directions.

What can be done?

Intellectual property in electronic assets may have a significant monetary value. These assets may need to be dealt with by intellectual property experts and it is often advisable to appoint separate literary executors to administer them under a Will trust. Literary executors can ensure that the assets are protected, preserved and exploited for maximum benefit of the beneficiaries. In addition, there will often be items that are of sentimental value. Hard copies of such sentimental items such as hard copy photos can be distributed in accordance with any letter of wishes that may be left for the deceased’s chattels. However, even the modern version of chattels (applicable after 1 October 2014 – section 55(1)(x) Administration of Estates Act 1925) will not include digital assets. Careful Will drafting should therefore be undertaken to include gifts of digital assets or to amend the existing personal chattels legacy to include intangible assets that are held electronically.

What is being done internationally?

In the US, the revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) states that fiduciaries for digital assets are subject to the same fiduciary duties applicable to tangible assets. (Section 15 RUFADAA). Thus, an executor may not, for example, publish the deceased’s confidential communications or impersonate the deceased by sending emails from their account. The act provides a three tiered system of priorities:-

1. If the internet service provider provides an online tool separate from their general terms of service allowing the user to dispose of their digital estate in a particular way, or to direct the internet service provider to delete the user’s digital assets, RUFADAA makes the user’s online instructions legally enforceable;

2. If the internet service provider does not provide an online planning option or if the user declines to use the tool provided, the user may give legally enforceable directions for the disposition of digital assets in a Will, trust, power of attorney or other written record; and

3. If the user has not provided any direction either online or in a traditional estate plan, the terms of service for the user’s account will determine whether a fiduciary may access and dispose of the user’s digital assets.

In Canada the proposed Uniform Fiduciary Access to Digital Assets Act confirms the common law, making it very clear that the fiduciary has exactly the same access to digital assets that the deceased had. A service agreement provision which contradicts this right is not valid. For Estate Administration Statutes and rules, the most recent example is the Estate Administration Act of Alberta, passed in 2014 and in force 2015. This Act removes all the old distinctions between the powers of the administrator with respect to specific property and gives broad general powers with respect to all property (digital assets included). Broad responsibilities start with carrying out the wishes of the deceased.

Such legislation makes it much easier to ascertain whether a person has left any instructions for their digital estate and if they have, what duties they are owed by the deceased’s personal representative in that situation. It is hoped that a similar law will be enacted in the UK in future.

What is the STEP group doing?

STEP has its own digital assets special interest group which is now looking at several projects including digital currency and block chain, electronic signatures, and cyber security including password managers. We will be presenting at the STEP special interest group spotlight event end November 2017.

Author: Louise Lewis TEP, Senior Associate - Private Wealth, Penningtons Manches LLP