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The value of our online lives is worth billions of pounds but many of these assets may never be passed on, as people are failing to record their digital worth. In research undertaken by accountants PWC, the value of our digital assets was estimated at £25bn, yet in a YouGov poll over half of those surveyed admitted nobody would be able to access such assets after their deaths, as they had not made any arrangements to deal with what would happen. As a result, finding out how to protect confidential information and pass on digital assets is becoming increasingly important – whether when making a will and appointing executors, or considering attorneys to act during a period of ill health or other incapacity. Digital assets include all content, accounts and files created and stored in a digital form, whether online, in the cloud, or on a computer or smartphone. These assets may have great financial or sentimental value. Obvious examples of assets with a tangible financial value would be bank, building society or other types of investment accounts, but could also include gambling accounts, cryptocurrency accounts and internet payment accounts like PayPal. Social media accounts, personal photographs and other personal records and correspondence may only have sentimental value, but in between, there may be some that have a potential value, such as domain names, blogs, or affiliate accounts that generate advertising revenue. As the Yougov research highlighted a common problem associated with digital assets is that it is not always clear who owns digital content after death. Often the reason for this is that users found the detailed terms & conditions too difficult to understand or so long-winded that they did not read them. Some digital assets may be only a licence to use services, such as online music and media supplied through Apple’s iTunes. This sort of licence is personal to the individual and cannot be transferred to another person. “Protecting digital assets by making sure your executors know exactly what you own is becoming increasingly important, so you need to make sure it’s on the list when it comes to making or updating your will,” explained Laura Bailey, Wills & Probate Solicitor with Grant Saw Solicitors LLP “Physical assets are relatively easy to identify, but if you don’t provide any record of assets held online, it’s quite possible they would be overlooked. The other problem is where access is blocked, which may be because executors don’t have the log on information or because they don’t have authority to access the account.” Some accounts will not allow access by a third party, even if they are authorised to do so by the account holder, and in this case, it would be unlawful if executors access the account using the account holder’s log-in information. This sort of restriction may be a problem also for attorneys acting under a power of attorney, whether for a specific purpose or more generally, under a Lasting Power of Attorney (LPA) for financial affairs. An LPA, which allows an individual to appoint one or more people to act as their ‘attorneys’ to help in the management of their affairs, is common among the elderly or those who are suffering long term illness, although they are increasingly put in place by younger people who may need to enable partners or others to act on their behalf while they are away, for example when travelling for business. Protecting your digital assets: Make a full listing of all digital assets, including where they are stored; keep the listing updated regularly and store it securely. This can be alongside your will. Make a record of all usernames and passwords, together with the email address associated with the account, in case it is needed to reset a password, and store this separately and securely from the full listing. There are also software options for secure storage of account details and passwords. Never include any personal log-on information or account information within the will itself, as it becomes a public document once the Courts issue a Grant of Probate to executors. Similarly, no such information should be included in a Lasting Power of Attorney as the document must be shared with institutions and companies when attorneys request authority. Assets that have only sentimental value, such as photographs, can be gifted within your will as personal chattels, to ensure they do not get overlooked. For all online assets, check the small print and find out what happens to the account on death and then leave guidance to your executors, including whether you wish any particular accounts to be deleted or held as memorials. Give specific authority to your executors to access and manage all your digital assets. This should be in writing and can be included within your will or made in a separate document that is signed and witnessed. https://www.pwc.co.uk/issues/cyber-security-data-privacy/insights/digital-lives-we-value-our-digital-assets-at-25-billion.html http://cdn.yougov.com/cumulus_uploads/document/bl6dvqyx16/Results-for-The-10-Group-Digital-Legacy-130215.pdf https://www.gov.uk/power-of-attorney This is not legal advice; it is intended to provide information of general interest about current legal issues.

The value of our online lives is worth billions of pounds but many of these assets may never be passed on, as people are failing to record their digital worth. In research undertaken by accountants PWC, the value of our digital assets was estimated at £25bn, yet in a YouGov poll over half of those surveyed admitted nobody would be able to access such assets after their deaths, as they had not made any arrangements to deal with what would happen. As a result, finding out how to protect confidential information and pass on digital assets is becoming increasingly important – whether when making a will and appointing executors, or considering attorneys to act during a period of ill health or other incapacity. Digital assets include all content, accounts and files created and stored in a digital form, whether online, in the cloud, or on a computer or smartphone. These assets may have great financial or sentimental value. Obvious examples of assets with a tangible financial value would be bank, building society or other types of investment accounts, but could also include gambling accounts, cryptocurrency accounts and internet payment accounts like PayPal. Social media accounts, personal photographs and other personal records and correspondence may only have sentimental value, but in between, there may be some that have a potential value, such as domain names, blogs, or affiliate accounts that generate advertising revenue. As the Yougov research highlighted a common problem associated with digital assets is that it is not always clear who owns digital content after death. Often the reason for this is that users found the detailed terms & conditions too difficult to understand or so long-winded that they did not read them. Some digital assets may be only a licence to use services, such as online music and media supplied through Apple’s iTunes. This sort of licence is personal to the individual and cannot be transferred to another person. “Protecting digital assets by making sure your executors know exactly what you own is becoming increasingly important, so you need to make sure it’s on the list when it comes to making or updating your will,” explained Laura Bailey, Wills & Probate Solicitor with Grant Saw Solicitors LLP “Physical assets are relatively easy to identify, but if you don’t provide any record of assets held online, it’s quite possible they would be overlooked. The other problem is where access is blocked, which may be because executors don’t have the log on information or because they don’t have authority to access the account.” Some accounts will not allow access by a third party, even if they are authorised to do so by the account holder, and in this case, it would be unlawful if executors access the account using the account holder’s log-in information. This sort of restriction may be a problem also for attorneys acting under a power of attorney, whether for a specific purpose or more generally, under a Lasting Power of Attorney (LPA) for financial affairs. An LPA, which allows an individual to appoint one or more people to act as their ‘attorneys’ to help in the management of their affairs, is common among the elderly or those who are suffering long term illness, although they are increasingly put in place by younger people who may need to enable partners or others to act on their behalf while they are away, for example when travelling for business. Protecting your digital assets: Make a full listing of all digital assets, including where they are stored; keep the listing updated regularly and store it securely. This can be alongside your will. Make a record of all usernames and passwords, together with the email address associated with the account, in case it is needed to reset a password, and store this separately and securely from the full listing. There are also software options for secure storage of account details and passwords. Never include any personal log-on information or account information within the will itself, as it becomes a public document once the Courts issue a Grant of Probate to executors. Similarly, no such information should be included in a Lasting Power of Attorney as the document must be shared with institutions and companies when attorneys request authority. Assets that have only sentimental value, such as photographs, can be gifted within your will as personal chattels, to ensure they do not get overlooked. For all online assets, check the small print and find out what happens to the account on death and then leave guidance to your executors, including whether you wish any particular accounts to be deleted or held as memorials. Give specific authority to your executors to access and manage all your digital assets. This should be in writing and can be included within your will or made in a separate document that is signed and witnessed. https://www.pwc.co.uk/issues/cyber-security-data-privacy/insights/digital-lives-we-value-our-digital-assets-at-25-billion.html http://cdn.yougov.com/cumulus_uploads/document/bl6dvqyx16/Results-for-The-10-Group-Digital-Legacy-130215.pdf https://www.gov.uk/power-of-attorney This is not legal advice; it is intended to provide information of general interest about current legal issues.

Ray Crudgington

Feb 15, 2018 | Articles

While the Bribery Act 2010 takes a tough stance on corruption, it’s not intended to stop all forms of corporate hospitality or prevent businesses from giving gifts. So where is the line drawn between an innocent gift to say ‘Merry Christmas’, and a potential bribe? And how can you make sure your business stays on the right side of what is allowed?

The Bribery Act is one of those pieces of legislation that most businesses do not even realise exists – until it’s too late. The definition of a bribe as opposed to a corporate gift can be blurry at the top end of the scale, but to put your mind at rest, businesses shouldn’t be too worried if they’ve sent out a batch of Christmas mugs to customers.

Corporate gifts or hospitality are not criminalised in the Bribery Act. Those that are reasonable and proportionate are quite acceptable.

To identify if the gift that you’ve been offered falls into the ‘okay’ bracket, there are three key factors to consider:

  • Intention
  • Value
  • Timing

Intention

A bottle of wine to say thank you to a customer is normally acceptable. But any gift or freebie that is intended to induce the recipient to make a business decision in favour of the giver is definitely not okay.

Value

You’ll need to consider if the value of the gift is relatively modest for the industry you’re in. There’s no specific limit to the value of a gift that will be considered acceptable, but you can use common sense. For example a bottle of wine may be appropriate, but an expensive bottle of vintage champagne may require closer scrutiny.

Timing

Modest gifts given around Christmas won’t raise too many eyebrows. But gifts that are given at the time of a tender or during a dispute could be considered a bribe, no matter how innocent or innocuous they may be.

Accepting gifts that comply to the three factors above

If you feel a gift meets the requirements set out above, it can normally be accepted. But when it comes to receiving any gifts or corporate hospitality, openness and transparency is still essential. Have a clear policy for staff to follow and a register for all items to be logged, even if they appear to have a low commercial value.

Legal support to protect your business from prosecution

Take specialist legal guidance to help you understand the risks and put plans in place to protect your business from bribery.

The Act defines bribery as:

“… giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so. This could cover seeking to influence a decision-maker by giving some kind of extra benefit to that decision maker, rather than by what can legitimately be offered as part of a tender process.”

To prove bribery, the prosecution must show that the hospitality or gift:

1)      Provided an advantage to another person

and:

2)      Was given or offered to induce the person to not act impartially or in the clear knowledge that accepting the gift or hospitality was improper. 

A business could be found guilty of failing to prevent bribery if it cannot show it has ‘adequate procedures’ in place to prevent it.  There are six key principles to follow to identify what you need to do:

  • Proportionality – actions should be in proportion to the risks you face
  • Top level commitment – the approach to prevent bribery should be led from the top
  • Risk assessment – to identify level of risk
  • Due diligence – the onus is on you to know who you are employing and that they can be trusted
  • Communication – your approach to bribery needs to be clearly communicated to staff and others
  • Monitoring and review – risks can change, so your procedures need to be monitored and reviewed regularly to ensure they are still adequate for your business.

What if you suspect an employee of accepting bribes?

If you suspect an employee has accepted bribes, your legal team will again be your first port of call. You’ll need to conduct an investigation into these allegations as early as possible and take swift action. You’ll also need to consider whether you can, as a business, prove that the adequate procedures were in place to prevent bribery.

With expert legal guidance you can decide the best course of action for your business. For example, whether it is appropriate for your business to initiate a Deferred Prosecution Agreement (DPA) to avoid a prosecution.

Corporate gifts can be a bit of a minefield, so never simply assume that your bottle of wine or desk set can be regarded as completely innocent. Every action has its consequences, and the Bribery Act is there to make sure that businesses do not have an unfair advantage, simply because they give out better corporate gifts than you. The golden rule, as always, is that if you’re in doubt, check with a legal expert.

 

This is not legal advice; it is intended to provide information of general interest about current legal issues.