For many, Instagram or IG has become a part of our lives, a place to collect memories and to connect with friends. For others, Instagram can provide a source of income, allowing the account holder to monetize their social media account. But what happens to our accounts after we die? Are our IG accounts digital assets that can be bequested or inherited? The short answer is no. Transferring an IG account after death can be complicated.To get to the bottom of this legal conundrum, we need to understand two things: 1) the contract between Instagram and its users known as the Terms of Use and 2) some basic information about digital assets and how they are transferred.
INSTAGRAM AFTER DEATH
To understand who controls someone’s IG account after they die, the first place to look is Instagram's tools and policies. Online platforms may provide tools to allow users to designate who would get access permissions after the user’s death. For example, Google’s Inactive Account Manager provides users the option to grant account access to "trusted contacts" after their death or other qualified inactivity. Unlike Google, IG currently does not offer a similar tool.
IG'S TERMS OF USE
In the absense of an explicit tool to grant others access to an account, Instagram's terms of service may provide other avenues. IG's Terms of Use is the constitution of Instagram. It is a binding agreement that sets forth the rights users have and give up in order to use the platform.
What does IG’s Terms of Use provide about inheriting accounts? Not much. In fact, neither the word “death” nor “inherit” are mentioned at all within the document.
YOU CAN’T SELL YOUR ACCOUNT
While Instagram's Terms of Use doesn't mention transfers after death, it explicitly bans one type of transfer – sales. According to the Terms of Use, users cannot “sell, license, or purchase any account or data obtained from the platform.” This restriction on sales applies to any part of the account, including your username, password, or verification badges. And while that doesn’t mean that sales are not happening (according to reports, IG accounts are in fact being sold and often at significant prices), IG may shut down the account that was sold in violation of its Terms of Use.
TRANSFER REQUIRES CONSENT FROM INSTAGRAM
Instagram requires its consent for transfers of any kind. The Terms of Use states, “You cannot transfer your rights or obligations under this agreement without our consent.” (emphasis added). Account transfers without Instagram's consent may be invalidated. While Instagram may not choose to interfere with the vast majority of transfers, they give themselves maximum flexibility to step in and block transfers, should they choose to do so.
INSTAGRAM AS A DIGITAL ASSET
In the case that Instagram consents to a transfer (or much more likely, simply does not choose to interfere with a transfer), than the law governing digital assets prevails. If you want to bequeath (give it through a will) an IG account, a user will want to make sure to (1) specify a beneficiary to inherit the account within their will and (2) provide the password to the beneficiary in another estate planning document.
WHAT HAPPENS IF NO ONE HAS THE PASSWORD?
If the beneficiary or the person gifted an IG account is not provided with the password, the options are limited. Instagram explicitly states that they do not provide login information for deceased persons, as "it's always against [Instagram’s] policies for someone to log into another person's account.” So even if John Beneficiary is the sole heir of the account holder, he will locked out without the password. While inheriting an account may present multiple obstacles, IG has set up some tools for family members. Instagram does provide the ability for someone to memorialize or close an account of a deceased user. For the Instagram page to be closed completely, an immediate family member must provide proof of death. Similarly, an immediate family member must also provide proof of death for an account to be memorialized. A memorialized account is unique in that it exists as a "frozen" account, and no one — not even family members — can gain access to it.
For more information on digital asset planning, check out our interview with Professor Naomi Cahn.
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