Digital legacy: traces of the deceased - How to enforce the right to access a deceased person’s user account

What happens to our data on the internet after we die? The majority of Germans would leave behind Facebook accounts and other social network accounts containing texts, photographs, videos and chat messages. The German Federal Court of Justice (Bundesgerichtshof) decided already on 12 July 2018 (case no. III ZR 183/17) whether, upon an account holder’s death, his/her heirs have a right to read such messages. This landmark decision clarified that the digital legacy should be treated the same way as any analogue legacy. By decision of 27 August 2020 (case no. III ZB 30/20), the Third Civil Senate of the Federal Court of Justice has now specified how this judgment should be interpreted as regards the enforcement of the heirs’ right to access the deceased person’s user account.

Facebook legacy decision

The dispute was based on an action brought by the mother of a 15 year old girl who had died in Berlin in 2012. As a member of the community of heirs, the mother demanded to be granted access to her daughter’s user account. The parents were in possession of the password for their daughter’s Facebook account, but could not access it because it had been “memorialised”. As the reason for not granting access to the account, the online network referred to the protection afforded to third parties: those who had communicated with the deceased person should be able to rely on their private messages remaining private. The Federal Court of Justice, however, ruled that the user account as such was part of the legacy and, therefore, the service provider had no right to refuse access to the account, including any communications stored in the account. The Federal Court of Justice held that there were no contractual provisions preventing inheritability. It further held that the personal nature of the content was not an obstacle either, as personal letters and diaries can also be bequeathed and there is no reason, from an inheritance law perspective, to treat digital content differently from, for example, diaries. The Federal Court of Justice pointed out that there was no doubt that data stored on a USB flash drive or on a hard disk was also part of the legacy and that the same, therefore, also had to apply to data stored on an external server, such as a Facebook server or a cloud. The Federal Court of Justice finally held that this also did not conflict with data protection law, given that the European General Data Protection Regulation (GDPR) only protects living persons.

Facebook delivers USB flash drive

In response to this judgment, the operator of the online network provided the deceased girl’s mother with a USB flash drive containing a PDF file with over 14,000 pages. This was a copy of the data retrieved from the deceased girl’s user account. The mother, however, was not satisfied with this solution and applied for a penalty for non-fulfilment of the operator’s obligation to be imposed; the Regional Court responsible for dealing with this case complied with the request and imposed a penalty. Facebook proceeded against this decision, which resulted in the Higher Regional Court of Berlin cancelling the decision of the Regional Court. The parents then proceeded against this cancellation by filing an appeal on points of law with the Federal Court of Justice.

Heirs replace the deceased person as a party to the user agreement with Facebook

The Third Civil Senate of the Federal Court of Justice declared that the debtor, as the operator of a social network, was obliged to grant the heirs the opportunity to look at the account and its content in the same manner in which this could previously have been done by the original authorised account holder. The Federal Court of Justice stated as a reason for this that the user agreement between the operator and the deceased girl had passed to her heirs with all rights and obligations by universal succession; as a result, the heirs, in their capacity as the new contractual partners and authorised account holders, had a primary right to access the user account with all its personal digital content. According to the Federal Court of Justice, by simply delivering the USB flash drive, the online platform operator had failed to fulfil its obligation arising from the judgment. This did not suffice to provide complete access to the user account, as such access involves more than just the right to look at the content of the account: it also includes being able to use all the functions of the account, with the exception of it actually being an active account.

Conclusion

The Federal Court of Justice, with its landmark decision and the more recent decision, clarified the much discussed question of whether a digital legacy can be inherited and how. The decision will have an impact on how data is handled in the various social networks, such as Facebook, Instagram and Twitter, but also in connection with other online services, such as PayPal accounts or classic e-mail accounts, and provides legal certainty with regard to the scope and enforcement of the inherited right to be granted access.

The decision also shows, however, that it may be necessary for people to take action already during their lifetime and regulate their digital legacy. If you wish to prevent that certain or all of your heirs gain access to your digital content, you should act with foresight and make the appropriate arrangements. To this end, you can use a traditional power of attorney, a “Vorsorgevollmacht”, i.e. a power of attorney authorising one or more people to make decisions on your behalf in the event you cannot make your own decisions anymore, a last will, or certain other means provided by the respective service provider. In the case of Facebook, for example, you can make an agreement regarding the permanent deletion of your account, or designate a legacy contact to look after the memorialised account.

The proverb that prevention is better than cure applies well here.