Proprietary rights in the online world: Is a digital footprint property?

This article explores whether a person’s digital footprint, specifically their online accounts and the contents within them, can be property owned by the account user. Despite people living a significant part of their lives online, there is no law in Australia which specifies whether digital footprints are property or a concise legal framework for determining when new concepts can be afforded proprietary rights. The example of classic cars is used to demonstrate that digital footprints can fall within a property law framework and hold proprietary rights. It is concluded that digital footprints are conceptually capable of being property and should be recognised as property under Australian law because they are commercially valuable and no other body of law adequately protects a person’s ability to determine how their digital footprint will be treated after death.

Today’s world is becoming increasingly dominated by people living a significant part of their lives online. Consequently, people leave behind substantial digital footprints following their death. However, there is no law in Australia which specifies whether digital footprints are property or a concise legal framework for determining whether new concepts can be afforded proprietary rights. This article argues that digital footprints, specifically a person’s online accounts and the contents within them, can be property owned by the account user. The example of classic cars, which are unquestionably recognised as property, will be used to demonstrate that digital footprints hold similar proprietary aspects. Digital footprints are identifiable; online users hold a bundle of rights, including the right to exclude others from their accounts, use and enjoy them as they wish and in certain circumstances can assign their accounts; and such rights are enforceable against a broad class of people. This article will develop a framework for determining how ‘things’ are deemed property, which will be applied to digital footprints to illustrate that they are capable of being property in the same way as classic cars. Lastly, it will be recommended that Australian law should recognise property in digital footprints because of their commercial and sentimental value and inadequate protection in other legal spheres.