Navigating digital legacies: a case for a legal framework governing the inheritance of social digital assets in Kenya

Abstract

The digital age has redefined the concept of property, with social media accounts emerging as a significant form of digital assets. However, Kenyan succession law does not provide a clear legal framework for their inheritance, creating legal uncertainty for families and fiduciaries. This study aims to explore the legal complexities of social digital asset inheritance in Kenya, assess the gaps in the existing legal framework, and propose solutions by drawing insights from the US legal framework, particularly the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). The study is guided by the personhood theory of property, which argues that social digital assets are an extension of an individual’s identity and should be inheritable. Using a doctrinal legal research approach, the study examines Kenyan succession and data protection laws, the impact of restrictive terms of service agreements, and US. legislative developments. It finds that the lack of a legal framework in Kenya results in denied access to heirs, privacy concerns, and conflicts with social media service providers. The study recommends the enactment of a comprehensive legal framework that recognises social digital assets as property, integrates user consent mechanisms, and ensures coherence with data protection laws. Amendments to the Data Protection Act 2019 are proposed to balance fiduciary access and posthumous privacy rights. Public awareness on digital estate planning is also encouraged. By adopting these measures, Kenya can establish a clear and fair legal framework that comprehensively provides for the inheritance of social digital assets.

Keywords: social digital assets, succession law, fiduciaries, terms of service agreements, social media service providers, posthumous privacy rights.