Tweets from the afterlife

The article by Heena Khandelwal was published by DNA on May 28, 2017.

Famous personalities and celebrities with millions of followers on social media platforms enjoy the stature comparable to high-value brands. Their Facebook posts, tweets and Instagram images not only have the potential to influence society but often become fodder for news, online discussions and even prime time debates. But have you paused to wonder what happens to their social media accounts in the event of their death? What becomes of the huge bank of online data that they leave behind? Do these digital assets naturally pass onto the next of kin, to the digital platform or to a third party that managed the said account/s in the first place?

While these are not new questions, the tussle over the social media accounts of former president late Dr APJ Abdul Kalam between his family and Kalam's former aide who managed his social media affairs, has thrown the issue under the spotlight. Nearly two years after Kalam's sudden demise, his family and Srijan Pal Singh find themselves on the opposing sides. It all started when Singh began handling Kalam's Twitter and Facebook accounts after his death on July 27, 2015. When the family sought the account details, stating their rights over Kalam's digital assets, Singh changed the username and the handle of his verified Twitter account from @apjabdulkalam to @KalamCentre. At the time of Kalam's death, his verified Twitter account (@apjabdulkalam) had nearly 1.5 million followers and 886 tweets. When this was renamed to @KalamCentre, it stopped being a 'verified' handle. Singh did not hand over the details of this account to the family but the details of a new Twitter account that he'd created with the same handle, @apjabdulkalam, which had barely 50 followers. Incidentally, Kalam's original Twitter account had 829 tweets (at the time of going to press), implying that some of Kalam's tweets have been deleted since his death. Regarding Kalam's Facebook page (Facebook.com/kalamcentre), Singh maintains that its username has always been Kalam Centre and that it doesn't belong to the family.

"These are digital assets of a former President of India. He (Singh) is changing the legacy by changing the name and handle of his Twitter account," says Kalam's grandnephew APJMJ Sheik Dawood, insisting that the account details should be given to the family. "Everybody was following Kalam and not anything or anybody else. He shouldn't have changed the name or handle."

Singh contends that since he was the one who created and managed Kalam's social media presence, he has sole rights over these assets. "Dr Kalam's social media accounts were started to spread the message about his ideologies. I am here to continue his mission... whoever handles his accounts should be in sync with his ideologies," says the 32-year-old. "I practically lived with him in the same house in the last few years of his life and was very close to him. I understood him."

Trust in times of tweets

Ask if his actions tantamount to misleading Kalam's followers and the public at large, Singh is dismissive. "On March 18, 2017, we informed our (Kalam Centre) users of the name change through a tweet, and so it is up to them to follow who they like. There are already plenty of fan pages and other accounts running in his name," says Singh.

Even as he defends his position, the fact that he was using Kalam's verified account for nearly 20 months after his demise can be seen as a breach of the right of reputation. "Posting or tweeting on behalf of a deceased person is breaching their right of reputation," says Chinmayi Arun, executive director, Centre for Communication Governance (CCG) at National Law University, Delhi. Third party agents, according to Arun, should refrain from impersonating their principals in the same manner that secretaries and administrators refrain from impersonating their employers. "In case of an individual's demise, the agents are expected to handover everything to the heirs and this should also apply to digital accounts," she says.

On its part, Twitter India refused to comment when contacted and pointed this reporter to the site's support page on deceased or incapacitated users. The micro-blogging site makes it clear on its website that it does not provide account access to anyone regardless of their relationship with the deceased person, and added that "this policy is about deactivating accounts, not transferring ownership of accounts".

Emails to Facebook India's corporate communication head remained unanswered. The social networking site states on its pages that it neither approves the inheritance of a user's account nor permits using an account following a user's demise. Instagram lists a similar policy and states that an account can be memoralised or removed after the user's demise.

Black, white & grey

While social networking sites' policies clearly mention that an individual user account should be operated by the person him/herself, it is common knowledge that celebrities often outsource the management of their social media accounts to digital and social media agencies or to a select team under their direct watch. They too tread nebulous waters. Digital marketing agency, EveryMedia Technologies, which manages celebrity accounts, states that although there is no clause regarding the protocol to be followed in the case of a client's death, they would do as per the social platform's guidelines after due consent from the family. "Our contracts do not have a clause that states the way forward in case of demise of the account holder and we hope such a day doesn't come," says Gautam B Thakker, CEO, EveryMedia Technologies. "In the event of such an unfortunate incident, the standard operating procedure would be to convert the account into a legacy account and memorialise it for fans and well-wishers or to deactivate and close it — whatever the social platforms' and the client's family permits."

Daksh Juneja says of Avignyata Inc specifies that the work is based on strict contracts, which never mention the course of action to be taken in case of the personality's death. "There is no contractual obligation towards the IPR rights for a celebratory client on both sides but it's important to share the access of the social media pages with the person's manager or a family member," says Juneja, the chief operating officer of the Mumbai-based digital agency, which handles social media accounts of Bollywood celebrities and sportsmen.

Supreme Court advocate and an expert in cyber law, Pavan Duggal, points out that the terms and conditions of social networking sites aren't clear. "Deactivating accounts can amount to loss of data, which can be used for reference and research. I think more clarity is required," says Duggal. "When a person has an account, only he/she should access it. However, if a person has an agent, then (in the case of death), the principle of agent applies."

Courtside view

Given the reluctance of social media platforms to engage and the lack of clarity as highlighted in the case of Kalam's accounts points to several questions — from handing over the digital accounts, intellectual property rights, right to reputation as well as unambiguous policies by service providers. Taking about Kalam's accounts, Duggal feels his family is the rightful legal heir to his digital assets. "The family should approach the court and file a case against Singh under the Information Technology Act and under IPC section 408 — criminal breach of trust," he says. "They can also reach out to service providers, and if they don't co-operate, they too can be sued under the IT Act."

Duggal strongly believes that "if a person has died without specifying, then his/her digital presence or accounts being a digital property, should be treated as movable assets and should pass on to the legal heir or representatives of the deceased person rather than to an NGO".

According to Sunil Abraham, executive director at Centre for Internet and Society, Twitter India should help settle the Kalam case using its existing policy. "And if there is no space for a legacy contact, they might consider resetting the password so that nobody has access to it and then they can memorialise the account," says Abraham. "Social media accounts are increasingly being enumerated under digital assets in wills. Once the asset has been transferred to the heir, the heir can choose to transfer the account to another person or organisation for their services in maintaining the account. While this is not explicitly provided for in the law, there is no prohibition either."

WHEN THEY DIED...

Among the eminent personalities whose social media accounts continue to be operational after their demise are anti-apartheid leader and former president of South Africa Nelson Mandela, pop star Michael Jackson and boxing legend Muhammad Ali.

While Mandela's account has been turned into a foundation, Ali's account states that it pays tribute to the boxing legend. Jackson's account mentions nothing about the fact that he died in 2009. Their Twitter and Facebook pages witness a tweet or a post every few days. Both Jackson and Ali also have verified accounts on Instagram; their photos are posted every now and then.

Among the celebrities whose accounts have been left inactive are Bollywood actress Jiah Khan, television actress Pratyusha Banerjee and British singer-songwriter George Michael. While Khan's last tweet (on May 23, 2013) was an apology message for staying away from the social networking site, Michael had shared his song Heartbreak a day before Valentine's Day on February 12, 2016. Banerjee had tweeted '#prayforparis #prayfortheworld' on November 15, 2015, showing her support against the terrorist attack in Paris on November 13, 2015. This was her last tweet before she was found hanging in her apartment in Mumbai on April 1, 2016.