Summary:
Anyone who uses social networks and digital cloud services, communicates via email or messenger, saves photos on Facebook, Instagram or other cloud services, wears fitness bracelets or rings or uses the options to contact their home while on the move leaves behind a lot of digital traces.
And all data stored in connection with the use remains with the respective provider even after the death of a customer or user.
It is therefore advisable for all users to take this data into account when making arrangements for the time after their death. After the user’s death, the question arises as to whether, by whom and under what conditions this networked data can be accessed.
Read here how you can save your heirs from difficulties in accessing your data.
Problem number one: the time factor
For the heirs, speed remains the order of the day: the testator’s digital assets must be secured quickly and comprehensively in order to forestall any adverse measures by the provider.
The six-week period for renouncing the inheritance is also a problem: If your heirs have no information about the contents of your estate, including your digital estate, they will hardly be able to decide within the period whether to accept or reject the inheritance.
Problem number two: access difficulties on the part of providers
It is often made difficult or even impossible for the surviving relatives to assert inherited rights and obligations against the providers.
The so-called Facebook ruling of the Federal Court of Justice from July 2018 on digital inheritance
The background to this verdict is sad: a 15-year-old Facebook user had committed suicide. The parents had tried in vain to gain access to the user account from Facebook in order to find out something about the background to the suicide from their daughter’s posts.
The Federal Court of Justice (BGH) has clarified that digital data is just as much a part of the estate as physical data, e.g. in letters, diaries, appointment calendars, address books or other documents of the testator. The term “digital estate” was coined and it was determined that the rights to digital data (as well as the associated obligations) are transferred to the heirs in the same way as the rights (and obligations) to physical objects of the estate.
The BGH gave inheritance law priority over data protection and in particular over the confidentiality interests of users of digital networks, in this case Facebook. The digital estate, according to the BGH, encompasses the entirety of the testator’s legal relationships with regard to information systems, including the entire electronic data set.
Essentially, the judgment contains the following statements:
1. The user agreement passes to the heir with all rights and obligations.
2. Although it is possible to exclude the inheritance of a user account, this was not the case in Facebook’s terms of use.
(BGH, Urteil v. 12.07.2018, Az. III ZR 183/17; ZEV 2018, 582)
How to ensure that your digital legacy is treated in accordance with your wishes
Before you sign a user agreement, check the contractual provisions regarding the fate of your data after your death.
Important: Is the estate contact (your heirs or a person authorized by you) allowed to read messages from the deceased, i.e. your messages?
And: Is purchased content, i.e. films, music and e-books, transferable?
If the contract does not contain any provisions regarding the handling of your data in the event of death or if access to your messages is made very difficult for your heirs, e.g. because a certificate of inheritance and possibly an officially certified English translation is required:
Make sure that your heirs or a person authorized by you have easy access to your accounts!
Checklist
1. Make a list of your digital assets with all access data (user names, passwords, etc.).
2. Give this to a trusted person or notary with instructions for inheritance and pension planning. Or choose another safe place to deposit your list.
3. Also regulate the handling of your data in your will. We recommend that you appoint an executor who will manage the affairs of your digital legacy in accordance with your wishes.
4. A power of attorney should also contain provisions for digital content. Important: The power of attorney should be transmortal, i.e. it should also apply after your death.
The scope of the BGH’s case law and the ruling against Apple
However, the BGH’s case law does not apply worldwide, but only in Germany and the EU. It remains unclear whether and how the “global players” are bound by the BGH’s case law.
Following the Federal Court of Justice, the Münster Regional Court issued a default judgment against Apple:
The background to the ruling was the death of a family father in a car accident. His heirs had unsuccessfully demanded access to his user account from Apple. The Münster Regional Court agreed with the plaintiffs that the BGH ruling could also be applied to other providers based in the EU. The defendant was an Apple subsidiary based in Ireland.
(LG Münster, VU v. 24.04.2019, Az. 014 O 565/18).
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