Digital estate: FCJ affirms the heritability of social network user accounts

 

Cologne, 16th July 2018

 

Digital estate: FCJ affirms the heritability of social network user accounts

 

The Federal Court of Justice, “FCJ” [Bundesgerichtshof, BGH] ruled by decision dated 12 July 2018 (docket No. III 183/17) that the heirs of an owner of a user account on a social network (in this case: Facebook) fundamentally move by way of overall succession into the account holder’s legal position as a party to the user contract upon the user’s death. This gives the survivors a claim to access the account and the communication content stored in it. The judgement of the previous instance, the Berlin Court of Appeals, was repealed.

In the case up for decision the user account of the claimant’s daughter, who had died aged 15 in a subway accident under as yet unclarified circumstances, had been changed to so-called “memorialised” status which no longer permitted access even with the user data. The claimant sued the defendant for access in order to obtain certainty as to a possible suicide motive of his daughter and to defend against damage claims brought by a subway driver in connection with his daughter’s death.

In the FCJ’s opinion, the heritability of the user contract as well as the ensuing claim to access the account was not contractually excluded since the clauses on the memorialised status had not been validly integrated into the contract here and, furthermore, did not withstand an examination of their contents pursuant to provisions governing general business terms and conditions in any event. Nor could the contract’s inability to be inherited be derived from its nature. The protection of the personal rights of the deceased communication partners specifically did not require this. Rather, the defendant’s contractual obligation to ensure the confidential transmission of content was solely account-based and hence did not demand the confidential transmission to a specific person, but rather only to the person’s user account. Accordingly, one could not legitimately expect that only the account holder as opposed to any third parties gained knowledge of content on the account. This conclusion also corresponds to the legal situation in other legal positions involving highly personal content such as diaries or personal letters, which are acknowledged as also being heritable.

The statements of the FCJ are also of relevance to data privacy law. Firstly, the FCJ declared that the protection of the data of communication partners does not oppose the provision of access. Secondly, however, in accordance with the regulations of the new General Data Protection Regulation (GDPR), a post-mortem (and heritable) data protection was denied. This means, for example, that heirs will no longer be able to assert the deceased’s claim to information pursuant to Art. 15 GDPR and also have no claim of their own pursuant to this norm (because it does not concern their data). Thus, contractual regulations and preventative measures by the testator will be of increasing importance in the future.

The press release of the Federal Court of Justice can be found [here].

The FCJ’s judgement can be transferred to all providers of internet communication services (social networks, e-mail accounts) and strengthens the position of heirs vis-à-vis such services. Unless otherwise provided by the testator in exceptional cases by way of contractual regulation or last will and testament, the following applies: the heirs wholly assume the position of the testator and may freely dispose over the deceased’s digital estate. Should a testator hold a user account with Facebook, then there are already various possibilities available during the user’s lifetime to reach binding agreements with Facebook on the handling of the user account upon death.

Future testators are advised to not to wait with addressing the issue of what should happen with their user accounts, their so-called “digital estate”, in the event of their death and to agree on corresponding provisions with the contractual partner and, if applicable, make provisions in their last will and testament.

 

Dr. Axel Wenzel, LL.M.

Partner

Telephone: +49 221 2091 455
Telefax: +49 221 2091 333 

Austria, Bulgaria, Croatia, Czech Republic, Hungary, Liechtenstein, Romania, Slovakia, Slovenia, Switzerland

Dr. Luise Hauschild

Junior-Partnerin

Telephone: +49 221 2091 123
Telefax: +49 221 2091 333

luise.hauschild@oppenhoff.eu