{"id":50988,"date":"2018-08-02T12:21:31","date_gmt":"2018-08-02T10:21:31","guid":{"rendered":"https:\/\/www.hiig.de\/?p=50988"},"modified":"2023-03-28T17:13:09","modified_gmt":"2023-03-28T15:13:09","slug":"is-there-digital-life-after-death","status":"publish","type":"post","link":"https:\/\/www.hiig.de\/en\/is-there-digital-life-after-death\/","title":{"rendered":"Is there (digital) life after death?"},"content":{"rendered":"

Yes, at least for your digital persona according to the German Federal Court of Justice<\/span><\/i>\u00a0[1]<\/a><\/sup>.\u00a0<\/em>The judges found that a social media account is hereditary. Social media accounts are to be treated as analog diaries. Would this mean that your heirs may access the data of your dating apps?<\/span><\/i><\/p>\n

In Germany, it passes via Karlsruhe<\/h2>\n

The case unfolded against the tragic background of a teenager\u2019s death on subway tracks in Berlin. The heirs of the deceased filed a claim against Facebook seeking access to her account. The password was of no use since the platform had put the account in the so-called \u201ccommemorative state\u201d rendering the login feature unavailable. The parents hoped to shed light into the unclear circumstances of their daughter\u2019s death. The case divided the lower instance courts: First, the District Court of Berlin granted the mother\u2019s claim[2]<\/a><\/sup>, a decision the Court of Appeals[3]<\/a><\/sup> then overturned in the second instance deciding in favor of Facebook. The last judgement was met with skepticism in the press and the legal scholarship, as well. Finally, the Federal Court of Justice (BGH) restored the first-instance decision.<\/p>\n

The federal judges in Karlsruhe found that the contract between the deceased and the social network passes by way of universal succession to the heirs pursuant to section 1922 (1) of the German Civil Code (BGB). This presupposes that the contract in question is part of the deceased person\u2019s assets. These include under German law all rights or legally relevant positions of monetary value. Non-hereditary are only assets which are highly personal. It would be reasonable to argue that the amount of data shared on social media or rather collected by the latter about the activity of the user is of a high personal value. As conceived in German legal theory, these data often arise from the intimate personal sphere. However, the criterion applied here does not focus on the quality of data as such, but rather on the contractual relationship in question.<\/p>\n

Are social media accounts \u201chighly personally tailored\u201d to the users?<\/h2>\n

The majority opinion of the German legal scholarship and the German courts consider the types of contracts between the users and mainstream social media companies (such as Facebook, Google, LinkedIn etc.) as non-personal as the contractual obligations thereof are not \u201chighly personally tailored\u201d. This is based on the argument that the social media companies enter contractual relationships providing their services to users regardless of their identity. Exception to this rule are -unsurprisingly – contracts with dating agencies as recognized by the District Court of D\u00fcsseldorf[4]<\/a><\/sup>. The working group on legal issues in the digital context commissioned by the German State Ministers of Justice concluded that these types of contract are \u201cper se personally tailored\u201d[5]<\/a><\/sup>. The contract categorization can be difficult, especially when companies offer broadly differentiated services and their terms of use simply refer to all of them[6]<\/a><\/sup>. Even within a service, the scales of \u201cpersonally tailoring\u201d vary. Would Facebook also offer a \u201chighly personally tailored\u201d service after it introduces its announced dating feature[7]<\/a><\/sup>? It\u2019s hard to tell.<\/p>\n

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