In Germany, it passes via Karlsruhe

The case unfolded against the tragic background of a teenager’s 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 “commemorative state” rendering the login feature unavailable. The parents hoped to shed light into the unclear circumstances of their daughter’s death. The case divided the lower instance courts: First, the District Court of Berlin granted the mother’s claim^[2], a decision the Court of Appeals^[3] 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.

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’s 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.

Are social media accounts “highly personally tailored” to the users?

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 “highly personally tailored”. 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 Düsseldorf^[4]. 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 “per se personally tailored”^[5]. 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]. Even within a service, the scales of “personally tailoring” vary. Would Facebook also offer a “highly personally tailored” service after it introduces its announced dating feature^[7]? It’s hard to tell.

This argument cannot stand in an environment of platforms’ applying sophisticated AI in order to provide highly personalized content to their users. The different treatment of dating agency contracts suggests that this criterion has two dimensions: first the degree of the content matching with the user’s preferences and the degree of the intimacy of the user’s preferences the content matches with. To illustrate this, Tinder fulfills both requirements as it firstly matches at a high degree with the user’s preferences which secondly happen to be “highly personal” as linked to sexual orientation. Whether the platform suggests a future employer or a close political organization, it offers highly individualized content to the user rendering their contractual relationship highly personal. Under German inheritance law, even documents of high personal value can be inherited pursuant to Section 2047 (2) of BGB. The question of inheritance – as any assignment of claims – is rather contingent on whether the content of the obligation is altered upon transfer to a person other than the original creditor pursuant to Section 399 of BGB. It would be reasonable to argue that the obligation to provide personalized content cannot be met with another person other than the deceased. The BGH decided otherwise. A comparison was drawn between a P.O. box and a social media account. In effect, digital assets shall be dogmatically treated as the analogue ones under inheritance law.

Universal succession über alles

As already mentioned, the interesting feature of this case was that the parents were in possession of the password, but were unable to log in due to the “commemorative state” of the account. With respect to the clauses of the user’s agreement that prescribed such measures restricting the heirs’ access to the account of the deceased, the BGH declared them null and void. Pursuant to consumer protection regulations, terms of service must inter alia abide with central principles of the German legal system. The principle of universal succession is one of them.

Facebook raised privacy concerns of the users involved in the communications with the deceased. The BGH raised some eyebrows when responded that there is no legitimate expectation of confidentiality even during lifetime as abuses cannot be excluded with certainty when users grant access to third parties. It is questionable whether this factual analysis corresponds with the legal one. Even if they can, it does not mean that they are allowed to. Not even the telecommunications secrecy pursuant to Section 88 (3) of the Telecommunications Act (TKG) could stand in the way of the sacred cow of the German Jurisprudence, the German Civil Code. According to the BGH, the heirs are not “others” to whom the content of the telecommunications must not be transferred within the meaning of the section, but rather embody by way of universal succession the deceased as the original telecommunications subject. This contradicts the reasoning of the Court of Appeals that the communications confidentiality as protected by Art.10 of the German Basic Law supersedes the inheritance law. The endeavor to compare digital communications with analog ones even aches the dogmatically well-trained muscles of the German law. In a society where the data flow is immense and awareness thereof has grown, it is only reasonable that the protection afforded to communications is not chained in the notion that digital services are to be treated as diaries.

GDPR – only for the living?

The GDPR – although attributed god-like powers in data protection and revered by any social media company which cares for its profits – ends there where life does. Pursuant to Recital 27 and Art. 1, the GDPR applies only to natural, thus living persons. Since the GDPR harmonizes only a minimum level of protection EU-wide, it may be up to EU countries to extend it to the deceased. Indeed, the life expectancy of your data may depend on whether you live in Bulgaria, Cyprus or Estonia. Many countries protect the deceased’s personal data, others provide a temporal limit of protection and others explicitly do not. Accordingly, the European Court of Human Rights refused to grant the deceased a right to privacy, unless their privacy is connected to the privacy of living individuals^[8].

In Germany, there is a solid tradition with regard to life-transcending rights. As construed by the German Federal Constitutional Court in the Mephisto case^[9] and applied by the BGH in the Marlene Dietrich case^[10] the respect for the human dignity does not end with the natural death of a person, but rather exerts effect after it. However, the personality rights of the deceased based on the life-transcending dignity do not preclude the heirs from gaining access to the account. Instead, these rights can be exercised by the close relatives of the deceased – who are not always the legal heirs – in order to prevent any abuse. In the hope that the German Federal Constitutional Court overturns this decision based on its constitutional aspects, one has to admit that BGH set a legal precedent. In any case, the individual still has the right to choose by way of testament the deletion of the account. So why leave this decision up to the social media or the heirs? For this is a matter of life and death – at least within the digital boundaries.

^[1] BGH, Urt. v. 12.07., Az. III ZR 183/17.
^[2] LG Berlin, Urteil vom 17. Dezember 2015, Az. 20 O 172/15.
^[3] KG Berlin, Urt. v. 31.05. 2017, Az. 21 U 9/16.
^[4] AG Dortmund, Urt. v. 18.9.1990 – 128 C 413/89.
^[5] Arbeitsgruppe „Digitaler Neustart“ der Konferenz der Justizministerinnen und Justizminister der Länder Bericht vom 15. Mai 2017, pg. 340.
^[6] Google’s terms of service refer to all products and services.
^[7] Zuckerberg mentioned a dating service at the last F8 conference
^[8] Jäggi v Switzerland, no. 58,757/00.
^[9] BVerfGE 30, 173.
^[10] BGH, Urt.vom 1. 12. 1999 – I ZR 49/97.