Online artefacts of the dead should not be deleted: Deakin expert

Dr Patrick Stokes, senior lecturer with Deakin’s School of Humanities and Social Sciences, has been researching the ethics of dealing with digital assets such as social media accounts.

“While the law continues to be silent on how to deal with the digital assets of those who have passed away, I argue that people who have passed away have a right to be remembered or continue to exist as objects of moral regard,” Dr Stokes said.

“That being the case, while there may be good reasons to delete some accounts, I believe the default should be preservation.”

In a submission to the NSW Law Reform Commission’s review of digital assets laws Dr Stokes has argued that how we deal with the social media accounts of people who have passed away is as much an ethical matter as it is a legal one.

“An unexpected side-effect of the social media era has been the ongoing presence of the dead online,” Dr Stokes said.

“While the likes of Facebook profiles are an important part of how we mourn, commemorate, and even speak to those who have passed away, they have also proven a challenge for governments, tech companies, and families grappling with what to do with the digital assets the dead leave behind online, and who should get to decide.

“Along with the legal considerations, how we treat digital remains also throws up ethical issues that should not be ignored: Do we have a right to simply delete the dead? And how should we respond to other emerging technologies, such as chat bots that imitate the dead? Are these just cool new tools to remember the dead, or a way of exploiting and even replacing them?

“As my research has shown insofar as social media profiles are a virtual part of the person, there are prima facie moral reasons not to delete them, even if these reasons can sometimes be outweighed by other moral considerations.”

Dr Stokes said that policy responses to date have applied existing ownership concepts or rights of disposal without acknowledging the ways in which digital assets differ from traditional assets such as houses or furniture.

“Unlike physical assets such as physical books and CDs many digital assets are licensed rather than owned so we can’t bequeath eBooks or iTunes downloads,” he said.

“One way of viewing the digital assets of the dead is not through the lens of deceased estates but as human remains.

“These are not heritable property, families do not inherit ownership of their loved one’s body, but nonetheless have certain (highly regulated and circumscribed) rights of disposal.

“Reconceptualising certain classes of digital assets as remains instead of property changes our approach to how we should deal with these items.”

Given the ambiguity around what to do with digital assets, Dr Stokes said it was a good idea to make it clear what you want done with your digital legacy in wills.

“However often we need to make those decisions for the deceased, and when doing that it is important we do so with regards to what they would have wanted rather than what would suit us as the living,” he said.

Dr Stokes said that the emergence chat bots created using digital remains was another area that required ethical, legal and policy consideration.

“This is a far more troubling area that needs serious regulation because it is almost exploiting the dead,” he said.

“Text messages or social media profiles that are left behind are being turned into an artificial intelligence driven chat bot that people can interact with that sounds like a deceased person.

“Who has the right to make decisions over this way of memorialising the dead or is it exploiting or even replacing them which is a troubling prospect.”