45 days after her murder, Shan’ann’s Facebook page, which was completely open to the public, is still completely open. This is unprecedented in a high-profile true crime case. It means anyone who wants to poke around through her life, looking inside her home, looking at her family and friends, can still do so. And people have. One 31 minute video posted by Shan’ann has already been viewed over 140 000 times.
As part of my research into TWO FACE I started noticing comments alongside these videos, including from key figures in this case such as Nickole Atkinson, not from several weeks prior but posted in recent days.
Everything posted on Facebook, including photos and videos, are matters of public record. Anything you say alongside those photos and videos could be used in a court of law, especially accusations and allegations against Chris Watts.
There have already been suggestions [malicious and totally unfounded in my opinion] that he molested his children. Although it’s doubtful specific members of the public could be held liable, what could happen is Chris Watts’ defense may claim his rights to privacy have been violated continuously, indiscriminately and excessively. It’s an open legal question – have they?
We may not care about the rights of a murderer, but we ought to care about the issue in a general sense. How would Shan’ann feel if she was still alive, knowing her life was on display post mortem? How do you feel about giving up access to our online identity? Would you? If she could speak from the grave, would Shan’ann still want her social media open and exposed to the world? What rights does a deceased individual have to their social media? Should all privacy and privileges be relinquished when we die?
It also begs the question, who has authorized her page to remain public and why?
I know more than a little about these issues, because as it happens, the very first true crime book I wrote was borne out of my exclusive access to the murder victim on Facebook. At the time I wrestled with the ethics involved, as well as the legal aspect.
As time went by, Reeva Steenkamp’s story was simply not addressed, and so, I took it upon myself to counter that with Reeva in her own Words. It was an instant bestseller, and it’s even possible the momentum of that narrative carried over into the trial narrative and eventually overwhelmed Oscar Pistorius’ dubious narrative. That book not only took the narrative away from Reeva’s murderer, it did so in a way that was authentic, it allowed Reeva to speak for herself when virtually no one else did, would or could.
The Oscar Pistorius trial was extraordinary in terms of how the victim was reduced to a non-entity, so much so that officially today Oscar has been found guilty of murdering an unarmed intruder, not Reeva Steenkamp. In court, during the sentencing phase, her father Barry took the stand and begged the court to release photos of gunshot wounds to her head so people could see her again, see her wounds, see what had happened to her.
Barry went to far as to say he often agonized at night, driving sharp objects into his own flesh where Reeva had been shot, in order to feel her pain. This was because the media narrative, the court narrative and Oscar’s narrative had reduced her to nothing. A figment of the imagination.
Her Facebook narrative, and a few surviving WhatsApp messages, allowed her to have a voice. And after five years, Oscar was finally convicted of murder [albeit not of murdering her].
But Reeva’s Facebook profile was private, accessible only to those who were already her friends when she died. In hindsight, I believe that was one of my most important books, but not everyone on Facebook is going to do credit to your story. And not everyone’s lives online are – for the lack of a better word – innocent. Here’s an illustration from Moneyweb, an online investment magazine:
…if someone consents to having their online assets retrieved by providing login details to heirs in their will, the heirs could be found guilty of hacking in terms of the service provider’s terms of service agreement.
Thus, in leaving digital assets to an heir, the first obstacle is access… A lot of service providers would inhibit a user from providing their login details and access to their accounts to other people. The second issue is the digital asset itself. There are various types of digital assets and the rights assigned to these assets differ…The rights assigned to an e-mail account varies greatly from the rights assigned to digital music for example. There may also be other difficulties: a user may not want their heirs to have access to all their digital data.
Booyens says she came across a case where a widow tried to access her husband’s e-mail accounts – purely to obtain records kept in the account. However, her late husband did not leave her any login details or consent to access the digital account. To overcome the issue, she hired someone to hack into the account and discovered that her husband was having an affair.
“Obviously her husband did not want her to get that much access.”
The same applies to this case.
But it also raises a much larger issue. Besides the public’s rights to their own online archive vis-a-vis Facebook’s almost automatic expropriation of it when we die, how does the law interrogate the labyrinth?
Back to Moneyweb:
…what are users consenting to?
…Facebook and YouTube expressly state that the user remains the owner of the content that they post. Amazon and Apple on the other hand say that customers have a licence of use. This means that ownership does not vest in the user and therefore they do not have rights that can be transferred. Even where users own the content, service providers may still assign themselves a wide spectrum of rights to use the content royalty-free and worldwide or for sub-licensing and transfer.
But what happens to a user’s rights when they pass away?
Facebook gives users the option to decide whether they want their accounts to be memorialised, deleted upon death or whether they would like to appoint someone to administer their accounts. Similarly, Gmail (Google) offers an inactive account manager service which provides for the account to be deleted or for someone else to gain access. Users can specify how much access should be granted.
Where a user only has a licence of use of the digital asset, they don’t have the right to dispose of it, but what if they have ownership yet cannot access the digital asset?
Some authors argue that the Copyright Act has confirmed that the ownership of e-mails can be established, but access may still be a problem… In this regard, the definition of property may be wide enough to include digital assets in terms of the Administration of Estates Act, which means that the executor – which has temporary custody over the estate – can gain access to the digital assets.
But what about post-mortem privacy?
Booyens says that internationally, courts are having a really difficult time following one line of argument…legislation such as the Promotion of Access to Information Act could protect privacy after death and may deny heirs the right to access an account. However, the Protection of Personal Information Act only defines rights in terms of the personal information of a living person, suggesting that privacy shouldn’t be protected after death.
So here’s a prediction. The Chris Watts case when it comes to trial will likely set enormous precedents for how social media ought to be managed and maintained. It may well set the gold standard for how the law ought to treat the rights of victims online, when they are no longer around to defend their virtual lives.