A ‘look-back’ at Facebook’s evolving deceased user policy

Facebook’s evolving deceased user policy

On 21 February 2014 Facebook announced two high-profile changes to their deceased user policy.  Changes to the deceased user policy are nothing new.  Since the inception of Facebook questions in relation to the handling of the accounts of the dead – including enquiries and access requests from surviving relatives – have seen the deceased user policy slowly evolve to where it is today.  For more detail on the evolution of Facebook’s policy see a recent article of mine – here.

Greater visibility of deceased user accounts

The two significant amendments announced relate to changes once a decedent’s account is memorialized.  Prior to 21 February 2014 when an account was memorialized, visibility of the account and content was to friends-only.  Unless you were a Facebook friend of the deceased person the account or any of its content could not be viewed.  The change announced by Facebook means that visibility of a deceased person’s content remains as it was set by the account holder while alive.  According to Facebook this “will allow people to see memorialized profiles in a manner consistent with the deceased person’s expectations of privacy.” It is unclear but it seems that this change applies to all memorialized accounts and not just those account holders who pass-away from 21 February 2014 onwards.  Therefore, the statement does appear to discount the prior expectations an account holder had with respect to their posthumous privacy – most notably the visibility of their account and content – under the older deceased user policy.

Deceased person’s expectation of privacy

The issue of user expectations and the memorialization process was specifically addressed by the Office of the Privacy Commissioner of Canada in 2009 in her report on Facebook: (see paragraphs 279-280).

In my view, most typical Facebook users would welcome the prospect of being posthumously remembered and honoured by their friends on the site.  Likewise, I am sure that users generally would regard the freedom to pay their respects to deceased friends and fellow users as an important part of the Facebook experience.  I am also mindful that in memorializing an account Facebook takes care to remove information such as status updates and to restrict profile access to confirmed friends.

I am satisfied therefore that the practice of account memorialization meets the reasonable expectations of users and that Facebook may thus rely upon their continuing implied consent to the practice.

The Canadian Commissioner was satisfied that due to her conclusion on the reasonable expectations of users regarding the process of memorialization, that Facebook could rely on what she termed “continuing implied consent to the practice”.  However, this was predicated on Facebook providing a meaningful description of the memorialization process in its Privacy Policy.  A matter that Facebook eventually agreed to in August 2009 as part of the resolution reached with the Canadian Commissioner.  Therefore amending the visibility on decedent’s accounts whose death pre-dated this changed policy (21 February 2014) may not actually reflect those account holders expectation of post-mortem privacy as described in Facebook’s policy prior to their death.

Of course, there is no universally accepted norm to deal with access to and the disposition of social media accounts and their contents after death.  Even with real property differing legal, cultural, social and religious values and principles play a significant part in how different jurisdictions choose to deal with succession and probate matters.  Such complexity across the jurisdictions within which Facebook offer services and a lack of established norms obviously creates difficulties; should Facebook follow a common law, civil law or a religious based legal tradition in providing a solution?  In their evolving response, Facebook are now arguing that they merely permit the individual user to decide: if you shared with someone while alive, by default, you now continue to share with them in death.  The Facebook statement confirms:

We are respecting the choices a person made in life while giving their extended community of family and friends ongoing visibility to the same content they could always see.

Based on the Canadian Commissioners 2009 assessment criteria this position at least seems defensible for those whose death occurs following the introduction of the amended deceased user policy.

Look-back video

A further significant change in policy was also flagged.  A confirmed Facebook friend of a deceased user can now request a ‘look-back’ video from a deceased user’s account.  Look-back videos were introduced to mark Facebook’s ten-year anniversary, on 4 February 2014.  Each account holder received a short one-minute video, a retrospective on their lives based on posts and photos shared on the network.  For Facebook the ‘look-back’ videos have proved a huge success, with 720 million accounts containing sufficient content to generate a video and more than 200 million account holders viewing their videos within the first two days of them becoming available, with more than 50% of those sharing their video.

Almost inevitably relatives began to seek access to these short videos that highlighted memorable posts and photographs of their deceased relatives time on Facebook.  One such grieving father, John Berlin, from Missouri, sought access from Facebook to his son Jesse Berlin’s look-back video.  Jesse had died in 2012.  Direct contact with Facebook proved unsuccessful so John eventually posted a plea on YouTube.  Within 24 hours the video was viewed one million times and is now approaching three million views.  According to Facebook because of this viral YouTube plea they relented and created a look-back video for Jesse Berlin and shared it with his father.  In their press release Facebook claimed that due to this issue ‘touching their hearts’ and they have now amended their deceased user policy to permit friends of a decedent to request decedent’s look-back videos.

Why change the policy?

So, why did Facebook relent?  Is there any benefit – other than good public relations – from this change in policy? Most commentators have welcomed these changes as a sign of Facebook being ‘respectful of and responsive to’ issues raised by surviving families.  Others have tentatively questioned whether these changes are ‘simply a welcome example of a compassionate social media service provider’.

Taking a more cynical view it is arguable that given the success of the look-back videos that the lure of access to the video of a deceased relative or friend could be seen as a clever way for Facebook to boost the timely reporting of deceased account holders to them.  Facebook do not trawl the Internet for reports of death – they rely on others to report deceased users to them.  Although difficult to quantify a practice had emerged of relatives and friends gaining control of  passwords and subsequently the decedent’s Facebook account.  Unless the death was reported to Facebook a family could, in theory, continue to access and control the account indefinitely.  Memorialization however prevents even those with a valid password from logging-in and controlling an account.  A key condition to access a decedent’s look-back video is that the user’s account ‘must be memorialized‘.

The lure is working and reports are now slowly emerging of bereaved parents and siblings being locked out of deceased relatives accounts which they previously controlled.  According to reports the lock-out arises following the memorialization of the deceased person’s account triggered by a look-back video request.  It is clearly in Facebook’s interest to identify deceased account holders as quickly a possible.  After all, accurate identification of deceased users helps to better target advertising.  This is especially so as Facebook are transitioning their service away from free – reducing organic reach of pages – towards a paid marketing platform focus.  Driving a paid marketing platform requires the targeting of living account holders in order to keep ‘click through’ rates at viable and competitive levels when compared to other marketing platforms.

Where next for Facebook’s deceased user policy?

Of course, this analysis may be far too cynical.  Facebook in their announcement indicated that they continue to review and evolve their deceased user policy.

Changes like this are part of a larger, ongoing effort to help people when they face difficult challenges like bereavement on Facebook.  We will have more to share in the coming months as we continue to think through how best to help people decide how they want to be remembered and what they want to leave behind for loved ones.

It is unclear what changes Facebook intend to implement.  Nevertheless two strands emerge from the announcement.  Firstly, Facebook claim they want to ‘help people decide how they want to be remembered‘.  This could indicate a more granular set of options being made available for account holders in relation to what content remains visible on the platform following death.  Secondly, Facebook claim they want to help people decide on ‘what they want to leave behind for loved ones‘.  This raises the possibility that account holders may at some time in the future be permitted to nominate ‘loved ones’ for specific bequests.  Unfortunately, Facebook are generally ‘disinclined’ to permit content and data to be exported and deleted from the network, so we must wait and see how much testamentary freedom account holders may acquire in the future.   Nevertheless greater granular control over visibility and bequests would be a welcome step forward.



Image reproduced with permission of Law Society Gazette -Image by Thinkstock/Gazette Studio/Redmond Design.

Image originally published – Law Society Gazette Jan/Feb 2013


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