Law / Canada / New Brunswick
Fiduciaries Access to Digital Assets Act, a fiduciary's right of access against a custodian of digital assets
S.N.B. 2022, c. 59, ss. 1, 4, 6-8
In force since .
A data subject rights rule binding public and private bodies.
- Obligation class
- Data subject rights, Contract terms
As of .
What it requires
- These duties bind a custodian, which is any person who holds, maintains, processes, receives or stores a digital asset of an account holder; the Act does not apply to a digital asset of an employer that an employee uses in the ordinary course of the employer's business (ss. 1, 2 (2)).
- Give a fiduciary of an account holder access to the account holder's digital asset within 30 days after receiving the fiduciary's written request, proof of identity and the documents the Act lists; you may charge a reasonable fee for providing access, subject to the regulations (s. 8).
- Treat the fiduciary as having the account holder's consent for you to disclose the content of the digital asset to the fiduciary (s. 6 (1) (a)).
- Do not rely on a service-agreement provision that limits a fiduciary's right of access unless the account holder agreed to it by an affirmative act separate from agreeing to the other provisions; otherwise the provision is void, and a provision restricting jurisdiction or venue to a forum outside New Brunswick is void for a dispute about that right (ss. 6 (2) (a), 7 (2)).
These lines are LexLint's reading of the law's text, as of .
What this law does
A custodian is a person who holds, maintains, processes, receives or stores a digital asset of an account holder. A digital asset is a record that is created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic, optical or other similar means. The Act does not apply to a digital asset of an employer that is used by an employee in the ordinary course of the employer's business.
Subject to subsections (2) to (4) of the section and consistent with the fiduciary's authority, the fiduciary of an account holder has the right to access a digital asset of the account holder. A fiduciary who has the right to access a digital asset is deemed to have the consent of the account holder for the custodian to disclose the content of the digital asset to the fiduciary.
Unless the account holder agrees to a limit by an affirmative act separate from agreeing to the other provisions of the service agreement, a provision of a service agreement that limits a fiduciary's right to access a digital asset is void. A provision in a service agreement that purports to restrict jurisdiction or venue to a forum outside New Brunswick is void with respect to a dispute about a fiduciary's right to access a digital asset under the Act.
A fiduciary who has a right to access a digital asset may request access from the custodian by making a request in writing accompanied by proof of the fiduciary's identity and the documents the Act lists. A custodian that receives a request shall provide the fiduciary with access to the digital asset within 30 days after receiving the request and the relevant accompanying documents. Subject to the regulations, a custodian may charge a reasonable fee for providing access to a digital asset. The Act contains no commencement provision, so it came into force on the date of Royal Assent, .
When LexLint raises it
When your app profile says your app crawls the web, trains models, generates content with AI, deploys a chatbot, makes high-risk automated decisions, processes voice recordings, processes biometric data, operates a social platform, serves under-18s, operates an app store, ships a mobile app or reuses other publishers' content.