On the Digital Content Access Law after a Person's Death, 5784 – 2024
After a person's death, are their family members and loved ones entitled to demand that Google or Facebook give them access to the email inbox, Facebook accounts or WhatsApp in order to download, for example, materials they sent? Are they entitled to demand that AWS or uPress go through the footage or read a diary, article or blog that has not yet been published and is stored with them on their servers? And what about a cloud service that offers a "remote desktop" – can the provider be required to grant access in order to download the deceased's personal materials from that computer?
The massacre of October 7, 2023, and the war that followed it, made these tragic questions very relevant. Many families of the murdered and fallen wish to trace the last steps of their loved ones, many of them young, to commune with their desires and dreams, through the correspondence and photographs they left behind. The conduct required for this is, unsurprisingly, complex and cumbersome, sometimes involves turning to a court with a request for a suitable order, and sometimes is almost impractical for anyone who lacks the mental strength, time and resources for it. Over-regulation is a plague and its effects on society and its well-being are severe, but there is no doubt that this is an issue that raises complex questions that genuinely concern the right to privacy and the protection of personal privacy. Photos, private correspondence and various lists are by their nature materials that we assume, as a matter of course, that at least some of them will not be exposed without our choosing so, even if it is a close and beloved person (or perhaps precisely because of that).
Photo by Mourizal Zativa on Unsplash
Inheritance law is supposed, ostensibly, to provide the answers to these issues, certainly the general direction. But even without arguing endlessly over whether such content constitutes an inheritable "asset", young people usually focus on life. Not on drafting a will. That's the way of the world. The way of nature. It's good that way. Beyond that, it can be assumed that very few wills contain any reference to correspondence, emails, and all the digital content that circulates among the various devices and apps used by the deceased.
Access to Digital Content after a Person's Death Law, 5784-2024 that was passed less than two weeks ago on the initiative of Knesset Member Erez Malul (Shas; the law itself will come into force a year from its publication, i.e. in July 2025), seeks to address some of these issues. It does so in a fairly elegant way that essentially obliges the platforms to let users choose whether their content may be accessed after their death. The law states that providers of "digital content" services (= an online service used for sharing, distributing, saving or storing personal content) must publish rules on the matter and allow their customers to choose whether, after their death, their personal content (= content they created, edited or saved in their private account on that platform) may be accessed. The law excludes interpersonal communication services (for example, a chat a user conducted with another person). The provisions of the law will also apply to foreign service providers that offer and direct services to Israeli users, meaning that, on its face, it will also apply to the well-known social platforms.
The existing tendency in Israel and in many other countries to view laws, regulations and regulation as a whole as near-miracle cures for every issue does not prove itself, to put it in gentle language, very gentle. Nevertheless, it should be said in favor of those involved in enacting the law that they at least took a fairly soft path, and in any case also made clear (Section 2(e)) that the provisions of the law do not detract from other laws, including privacy protection and inheritance law. This last clarification indicates the complexity that those concerned will have to deal with when examining specific requests, and is likely to be at the heart of many discussions regarding the effect of exposing the materials not only on the deceased but also on third parties.
On the other hand, and despite the skepticism of the writer of these lines, if the law manages to persuade the major platforms and providers to truly ensure that users actively choose what will be done with their content after their death (and if they only want to – it will happen), that would definitely be a success. Time will tell.
It should be clarified that this short article does not purport in any way to serve as a legal opinion and should not be treated as one. The article also does not address the practical questions concerning the existing, or non-existing, approaches of the providers to users' content or parts of it, and does not purport to. The discussion is at the level of principle.
