Legislation sets TN public policy in posthumous social media rights

Legislation setting rules for access to digital information after death or disability — declaring void as a matter of Tennessee “public policy” any conflicting provisions set by Facebook and other social media sites in their user contracts — has won initial approval in a House subcommittee.

The “Uniform Fiduciary Access to Digital Assets Act” has drawn opposition from representatives of Facebook, Google, Amazon.com and others, according to Rep. Martin Daniel, R-Knoxville, sponsor of House Bill 774. Senate Majority Leader Mark Norris, R-Collierville, is sponsor in the Senate, where the bill has not yet come up for a vote.

Drafted as model legislation by the Uniform Law Commission last year and thus similar to measures introduced in some other states, the bill includes provisions saying that the legal representative of a deceased or incapacitated person — a fiduciary — can decide disposition of pictures and postings on a site even if the deceased or incapacitated person has approved a contract giving the site rights to control such things.

Allan Ramsaur, executive director of the Tennessee Bar Association, said many social media sites include such rules in the fine print of their sign-up contracts and that has led to unfortunate situations — for example, the parents of a teenager who committed suicide being unable to block dissemination of emotionally distressing pictures or postings without filing a lawsuit to obtain a court order.

Daniel said he read an article about such situations and decided legislation was needed last year, then learned that Norris was also advocating the idea.

His take on the opposition from social media representatives: “They just don’t want to be bothered.”