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April 20 — In a first of its kind ruling recently released in Germany, the Berlin Regional Court granted parents the ability to access their deceased minor child's online profile to regulate the inheritance of digital assets, attorneys told Bloomberg BNA.
“It's not only the first ruling for a Facebook account, but for digital inheritance at all,” Christian Pfaff, an intellectual property lawyer at KV Legal in Berlin, said. “There is no law on this in Germany, and there have been no court decisions on it previously, so it's really a new precedent.”
The Facebook profile in question belonged to a 15 year-old who was fatally run over by a subway train in 2012. The girl's mother hoped that her daughter's “messages and posts” on Facebook could shed light on whether her daughter's death was a suicide.
After Facebook refused to grant the girl's mother access to her daughter's account—which had been placed “in memoriam”— she sued to obtain access to the profile.
The Regional Court of Berlin (Landgericht Berlin) upheld the mother's complaint in its December 2015 verdict and ordered Facebook to grant the parents access to their daughter's Facebook account and messages (In re Facebook Ireland Ltd, Landgericht Berlin, No. 20 O 172/15, opinion filed 12/22/15).
Facebook appealed the regional court's ruling (In re Facebook Ireland Ltd., Kammergericht, No. 21 U 9/16, appeal filed, 2/1/16). A date for the new hearing hasn't been set.
“We are appealing as we hope to find a solution that helps the family while protecting the privacy of other people who may be affected,” a Facebook official said.
The user agreement between the user and Facebook was just like “any other binding agreement” and passed on to the user's heirs, the regional court reasoned. The court also ruled that Facebook didn't have any legitimate interests that would prevent parents from accessing their child's profile.
The postmortem rights of personality of the deceased didn't stand in the way of granting parents access to the account, the court said, as parents are responsible for protecting the rights of personality of their minor children—even if the child dies.
In this case where the circumstances of their daughter's death are still uncertain, parents as the heirs had a right to gain an understanding of their daughter's activities online, the court said.
Data protection laws did not prevent the parents from gaining access to their daughter's account, the Berlin regional court said.
“Facebook also argued that it is not only about the privacy rights of the deceased, but it's also about the privacy rights of communications partners, for example in messages or online chats,” Sebastian Meyer, an attorney with BRANDI in Bielefeld, Germany, said.
But the court reasoned that if heirs can read “confidential letters” sent by a third-party to the deceased without interfering in the third-party's rights, then the same applies to digital data.
“It's just standard estate law—if you exchange letters by mail, and you die, your heirs gain access to that communication,” Meyer said. “They can see what was written by your friend, and there's nothing like an infringement of privacy rights,” he said.
The court added that it saw no justifiable reason to treat digital and analog assets differently. If the assets were treated differently it would lead to a situation where letters and journals could be inherited independently of their contents, whereas e-mail and Facebook messages wouldn't.
“There are strict privacy and data protection laws in Germany, but there is usually no data protection when you're dead,” Pfaff said. “When someone dies and there are letters they exchanged with someone, or personal diaries, it's normally not protected because it's part of the inheritance,” he said.
What to do with the assets of deceased users is a new problem for social networks and other online companies, attorneys said. They note that companies often don't employ special personnel or teams that handle requests from people asking to access the data or accounts of their deceased loved ones.
“Death is always a difficult theme for these companies: it's never in their plans when they start social networks, but it's a problem, and they don't know how to react,” Pfaff said.
“I think companies have to create some kind of routine to handle this,” he added. “They'll just say, no, it's not allowed, or we just don't want to because of data protection, and there's no casework that would help.”
The legal situation on digital inheritance is similar in the United States—there are no federal laws regulating the inheritance of digital assets.
However, some states have passed laws addressing this issue. In August 2014, Delaware became the first U.S. state to enact a law (HB 345) that enabled family members to access dead relatives' digital accounts and pass on digital assets in a will (13 PVLR 1513, 9/1/14).
Digital inheritance is an area of law that needs to be developed further, attorneys say.
“Nobody really ever thought about the problem in Germany, and there was no real blueprint,” Pfaff added. “But now the issue is getting bigger, and more people are getting interested in this. Digital inheritance is still in its early stages, however.”
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