Estate Planning: Preparing for the Digital Afterlife
The emergence of digital ghosts on social media Social media platforms have become integral to our daily lives, but what happens to these digital profiles when a user passes away? Research by Carl J. Öhman, a doctoral candidate at the Oxford Internet Institute, sheds light on this evolving issue. Öhman’s study, titled “Are the Dead Taking over Facebook? A Big Data Approach to the Future of Death Online”, reveals a startling projection: if Facebook’s growth continues at its current rate, the number of deceased users’ profiles could surpass 4.9 billion by 2100, potentially outnumbering living users. This phenomenon underscores the rapid pace at which digitally stored information is outgrowing the world economy, including the accumulation of what Öhman refers to as “online ghosts”. The legal and ethical implications As the digital remnants of deceased individuals grow, they present unique challenges in the realms of privacy, estate planning, and digital heritage. Traditional notions of estate planning are now expanding to include digital assets and social media profiles. Facebook, Twitter, and other social networks have developed specific procedures for handling the accounts of deceased members. For example, Facebook offers options to delete or memorialise accounts, allowing for tribute messages on memorial pages. Users can direct their executors to manage their digital presence posthumously, either by maintaining a memorial status or ensuring prompt deletion of their accounts. Social media platforms’ policies on digital legacies Each major social media platform has its own approach to handling the accounts of deceased users. Facebook’s memorialisation feature and the option to select a legacy contact provide a way for loved ones to manage the profile of the deceased. Instagram, owned by Facebook, follows similar policies. Twitter, on the other hand, does not currently offer memorialisation but allows family members to request the deactivation of a deceased user’s account. Google has an Inactive Account Manager feature, enabling users to decide what happens to their data if they become inactive for a specified period. Apple also allows users to add a legacy contact to their Apple ID, providing an access key for data retrieval after the user’s passing. Practical steps To navigate the digital afterlife effectively, it is recommended that individuals include digital assets in their estate planning. This process involves deciding who will have access to passwords and account management and specifying the desired handling of social media profiles and data. Setting up legacy contacts or inactive account managers on supported sites can greatly assist personal representatives in managing digital assets posthumously. When dealing with the closure of a deceased individual’s social media accounts, it’s important to protect sensitive information and be mindful of the content shared on memorial pages. Embracing our digital heritage The ongoing expansion of our digital footprints, coupled with the inevitability of human mortality, necessitates a re-evaluation of how we handle our digital legacies. As social media platforms continue to evolve, so too must our approaches to digital estate planning, privacy, and the ethical management of digital afterlives. By proactively addressing these concerns, we can ensure that our digital heritage is preserved or managed according to our wishes, reflecting the growing intersection between our online and physical existences. Reference list: https://journals.sagepub.com/doi/full/10.1177/2053951719842540#:~:text=We%20project%20the%20future%20accumulation,9%20billion https://arxiv.org/abs/1811.03416 https://www.nvrlaw.co.za/OurInsights/ArticleDetail.aspx?Title=To-Facebook-out-of-the-grave-or-not https://www.ictc-ctic.ca/articles/the-digital-afterlife-an-interview-with-carl-ohman#:~:text=Digitally%20stored%20information%20already%20grows,the%20century%2C%20outnumbering%20living%20users https://www.justia.com/estate-planning/end-of-life-decisions/planning-your-digital-legacy/ https://www.findlaw.com/forms/resources/estate-planning/how-to-handle-social-media-accounts-after-death.html While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
The Perils of Using Chatgpt in The South African Legal Practice
Chat Generative Pre-Trained Transformer (ChatGPT), a powerful language generation model developed by OpenAI, has garnered significant worldwide attention and utilisation across various industries and professions. In South Africa, the legal profession is no exception. However, employing ChatGPT in legal practice comes with its own set of risks and dangers. This article sheds light on the potential perils of utilising ChatGPT within the legal sphere in South Africa, emphasising the importance of careful consideration and regulatory measures to mitigate these risks effectively. Accuracy and reliability issues: One of the primary concerns regarding the use of ChatGPT in the legal profession is its potential for inaccuracy and unreliability. ChatGPT is trained on historical data and relies heavily on human interaction to learn new facts which generate responses based on the patterns and information it has been trained on, but it lacks real-time judgment and critical evaluation capabilities. It was recently reported that lawyers arguing in a case in the Johannesburg Regional Court have been called out in a judgment for using fake references generated by ChatGPT. “When it comes to legal research, the efficiency of modern technology still needs to be infused with those of good old fashioned independent reading,” said Magistrate Arvin Chaitram of the situation. In this matter, although ChatGPT had referred to actual cases and given real citations, the citations related to different cases than the ones named. Ethical and legal responsibility: Whilst generative models like ChatGPT provide a great deal of opportunity to the profession, it does come with a large array of ethical and legal concerns which are mostly related to the complex structure of ChatGPT. Lawyers have a fundamental, ethical, and legal duty to provide accurate and competent advice to their clients. When utilising ChatGPT, lawyers may inadvertently shift some of this responsibility onto the AI system. If the AI-generated content proves to be incorrect or harmful, the lawyer will bear the professional and legal consequences thereof. Lawyers have a duty of technical competence and would be expected to understand how the Chatbot works and what the benefits and risks are if they are to use it in their practice. Lawyers who decide on ChatGPT will also have to be able to intelligibly explain the benefits and risks to their clients. Privacy and data security concerns: ChatGPT operates by processing and analysing large amounts of data to generate responses. Maintaining client confidentiality and protecting sensitive information is paramount in the legal field. At a privacy level, the use of ChatGPT may pose a threat to organisations. Section 1 of the OpenAI Privacy Policy collects information about the user’s browsing activities over time and across different websites. The site does not respond to “do not track” signals. This may pose a risk to the duty legal practitioners have to their clients. The Law Society of South Africa (LSSA) places duties on legal practitioners when using internet-based technologies and in its guidelines, prescribes that legal practitioners are required to take reasonable steps or reasonable protective measures to ensure that information provided by clients remains confidential. Lack of accountability and transparency: ChatGPT has been trained on vast quantities of data. It operates as a black-box model. Some of the data included may be proprietary. There can be concerns that ChatGPT may use such material in its response despite not being licensed by the copyright owner. Due to its nature, it’s challenging to ascertain how ChatGPT specifically generates specific responses, and this lack of transparency raises questions about accountability and the ability to contest or challenge AI-generated advice. In the legal profession transparency and accountability are vital for building trust and ensuring the legal system’s integrity. The main issues surrounding ChatGPT in the legal field include quality control, accuracy, ethical and privacy issues, and the fact that it is not specifically trained in the law. South Africa’s legal community therefore must exercise caution and prudence and do whatever is necessary to mitigate inherent risks associated with the use of ChatGPT. ChatGPT and similar AI technologies offer exciting potential for revolutionising the legal profession. ChatGPT should however be viewed as a tool to assist legal professionals rather than a complete replacement for human judgment, expertise, and experience. Careful consideration, ongoing research, regulation, and a clear understanding of the limitations and responsibilities when integrating AI into a legal practice is paramount in balancing the benefits of AI technology with the ethical and professional obligations of the legal profession. REFERENCE LIST: My Broadband Article “South African Lawyers use ChatGPT to argue a case – Get nailed after fake info” dated 9 July 2023 Bloomberg Law Analysis: “Would ChatGPT bring AI to Law Firms? Not anytime soon.” dated 28 December 2022. By Thomas Bacas De Rebus Article “Do Legal Practitioners Truly Understand the Danger of ChatGPT?” dated 1 September 2023 ENS Article “ChatGPT: A useful tool or risk for Lawyers?” Cliffe Decker Hofmeyr Article “Should I ask my Lawyer or should I just ChatGPT it?” dated 29 March 2023 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
What Implications Does a Lien Have on Eviction Proceedings: Part 1.
In conflicts between property owners and tenants seeking compensation for property improvements before leaving, eviction proceedings are possible, but success depends on location and lease terms. “I have been renting out my property to tenants for the last couple of years and the time has come for them to vacate the property. The tenants, during the period of their lease, effected certain permanent extensions and renovations to the property and now refuse to vacate the property unless I reimburse them for the extensions and renovations that they made to my property. What are my options as the property owner?” The relationship between owners and tenants can become strained when the lease agreement comes to an end and there exist disputes between the parties, especially when such a dispute relates to who is to be held liable for the extensions, renovations and/or building work (hereafter collectively referred to as “improvements”) that have been made to the owner’s property by the tenant. Some tenants may argue that they have a lien over the said property until the owner reimburses or compensates the tenant for such improvements. A lien is defined as a right that the retentor (in these circumstances, the tenant) obtains when they are in possession of another person’s property (in these circumstances, the leased property) and effects or performs work or spends money on such property. The right, which the retentor acquires, is to retain the property in their possession as security for payment from the owner of the value of the debt that accrues due to the improvements or maintenance effected on the property. Considering the above, there are a few factors that need to be established to answer the question of what the rights of a property owner are when tenants refuse to vacate the property. Firstly, the property owner will need to disclose whether the property being rented is situated in a rural or urban area. The second question will be what terms were agreed to when the lease was concluded between the owner and the tenant. The respective answers to the above questions will be discussed in separate articles. Regarding the first question: In the 17th century the Estates of Holland promulgated the placaeten, which determined that a tenant who leases immovable property which is situated in a rural area does not have a lien over such property if they made any improvements thereto. The tenant thus cannot raise the existence of a lien as a defence to eviction proceedings instituted by the owner of the property, and the tenant will be required to vacate the property immediately without considering the improvements made to the property. The tenant will, however, have the option to institute a claim for the value of the improvements made at a later stage. This principle was confirmed by the court in the case of Business Aviation Corporation (Pty) Ltd and another v Rand Airport Holdings (Pty) Ltd [2007] 1 All SA 421 (SCA). The court further found that the placaeten does not apply to property situated in urban areas. As a result, a tenant who rents property that is situated in an urban area, and who effected improvements to that property, may allege the existence of a lien over the leased property in their favour. Consequently, if eviction proceedings are instituted by the property owner against the tenant, the alleged lien is a factor that the court will consider in such eviction proceedings, and which may carry substantial weight in the circumstances. In conclusion, tenants who have made improvements to an owner’s property in a rural area cannot claim a lien in their favour to retain the property, and this argument holds no weight in eviction proceedings once they’ve been initiated. On the other hand, a tenant who made improvements to an owner’s property situated in an urban area will not suffer the same fate, as the tenant’s lien will carry weight in eviction proceedings brought against them. However, it is important to note that the outcome of the aforementioned scenario may vary depending on the terms of the lease agreement concluded between the owner of the property and the tenant prior to the improvements having been made to the property. Thus, a property owner in both abovementioned scenarios will be able to institute eviction proceedings but the success of the proceedings may vary depending on whether the leased property is situated in an urban or rural area. Regarding lease agreements concluded for properties situated in urban areas, the outcomes may differ further based on the specific terms which the tenant and owner agreed to in the lease agreement. This will be discussed in part two. Reference list: United Building Society v Smookler’s Trustees and Golombick’s Trustee 1906 TS 623 at 627 – 628. LAWSA vol 15 par 54. The principles contained in the placaeten have been found to be accepted and received into South African law. Eviction proceedings in rural areas are done in terms of the Extension of Security of Tenure Act, 62 of 1997. Eviction proceedings in urban areas are done in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Are You Using Your Residential Property for an Unauthorised or Illegal Purpose?
Residential homeowners must be aware of the judgment handed down by the Supreme Court of Appeal (SCA) in the case of the City of Johannesburg Metropolitan Municipality v Zibi (234/2020) [2021] ZASCA 97 (9 July 2021). The outcome of this case carries significant implications for residential homeowners who utilise their homes for commercial purposes without the necessary authorisation from the municipality. Rates payable by residential landowners are governed by the Municipal Property Rates Act 6 of 2004 (the Act). This legislation confers and regulates the local municipality’s power to value property and levy rates accordingly. The zoning of property is determined by various categories created by the Act, such as residential, commercial, or agricultural. One category for homeowners to be aware of, and which is discussed in detail in this judgment, is that of unauthorised or illegal use. When landowners use their property in an unauthorised manner, this category becomes applicable. In this matter, the respondents (Mr and Mrs Zibi and their two children) owned and resided in a residential home consisting of five bedrooms and two bathrooms. They decided to rent out two of their unused bedrooms as accommodation to students and young professionals, thus using the home for commercial purposes. The respondents did this without prior authorisation from the municipality. Several inspections were completed at the property, and the municipality discovered that it was being used as a commune (a commercial concern). In response, the municipality issued several notices to the respondents to terminate the unauthorised use of the property and further imposed a penalty rate per the rate category for unauthorised or illegal use; however, the property was not rezoned. Due to further non-compliance with the notices, the municipality obtained a High Court order interdicting the respondents from continuing to use the property in an unauthorised manner. The matter escalated when the respondents launched an application in the High Court challenging the validity of the municipality imposing a penalty rate. The High Court found in favour of the respondents, and this matter was finally taken to the SCA. The ultimate finding of the SCA was that where property is used in an unauthorised or illegal manner, it is within the municipality’s powers to impose penalties on homeowners. As a result, homeowners currently renting out space in their residential properties or intending to carry on a commercial concern in property zoned for residential use must obtain authorisation from the municipality to do so. Without such authorisation, property owners run a high risk of being penalised with higher rates. Reference List City of Johannesburg Metropolitan Municipality v Zibi (234/2020) [2021] ZASCA 97 (9 July 2021). Municipal Property Rates Act 6 of 2004. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.