I believe one of the most difficult challenges is that user generated content is unstructured in nature. An individual can post about his family trip, which would constitute personal data [1]. He could also post a poem, which would be intellectual property [2]. This has numerous implications because the legal obligations differ depending on the classification of the data. Erdos commented that some EEA states have instituted "sui generis provisions for the deceased's data" which would remove the uncertainty of how the data is to be classified.
The other issue would be the whether legal personality, with respect to digital assets, dies together with the person. While this is indeed true in most cases, there are exceptions such as "burials, organ donation and medical confidentiality" [3] and of course wills in which a deceased person's wishes can still be binding. This issue can be resolved elegantly. As long as digital assets can be considered property [4], then they can be dealt with in a similar manner as all other property, reducing the needs for exceptions or sui generis provision.
On the topic of defunct service providers, I believe this issue affects all service providers from all sectors. pCloud offers lifetime plans for cloud storage [5], Briggs and Riley offers lifetime warranty for their luggages [6], funeral companies offer prepaid funeral plans, insurance companies collect annual premiums on policies that could in some cases pay out only decades later. The Financial Services Compensation Scheme covers individuals if certain insurance and funeral services provider goes out of business [7]. However, de minimis non curat lex. For small value purchases, individuals should do their due diligence on the track record of a company. For intangibles such as digital assets, we should take full advantage of the non-rivalrous property of data that has been plaguing internet copyright lawyers. With just a few clicks, individuals can make an identical copy of their digital assets, and store it with multiple providers as a form of redundancy. Backing up digital assets should be second nature because like companies, digital devices can fail as well.
[1] Harbinja E, Digital Death, Digital Assets and Post-Mortem Privacy: Theory, Technology and the Law (Edinburgh Univ Press 2023), pp. 76
[2] ibid, pp. 83
[3] ibid, pp. 64
[4] ibid, pp. 53
[5] pCloud International AG, 'pCloud - Best Cloud Storage Pricing & Cost Plans' https://www.pcloud.com/cloud-storage-pricing-plans.html?period=lifetime accessed 23 November 2024
[6] Briggs & Riley, 'Lifetime Guarantee Premium Luggage | Briggs & Riley' https://www.briggs-riley.com/pages/lifetime-guarantee accessed 23 November 2024
[7] Financial Services Compensation Scheme, 'Financial Services Compensation Scheme | FSCS' https://www.fscs.org.uk/ accessed 23 November 2024