In 2012, a teenager, who was 15 years old at that time, died in an underground train accident. It was suspected that the teenager had committed suicide and the underground train conductor claimed for damages based on tort against the teenager’s parents. In order to defend themselves against the conductor’s lawsuit, they asked Facebook for access to their daughter’s Facebook account, expecting indications of or against the suicide. At this time, the account had already been changed into a so-called “Memorialized Account” and the word “Remembering” was displayed next to the teenager’s name. If, as in the present case, the deceased has not determined anyone as a legacy contact, no one can log into the account or manage it.

The social network indeed refused to grant the parents access to their daughter’s profile.

With reference to its terms and conditions and statutory requirement to protect the secrecy of telecommunications Section 88 German Telecommunications Act (Telekommunikationsgesetz – “TKG), Facebook refused to give the parents access to their daughter’s profile since it was not allowed to provide information about content or further circumstances of the communication to third parties.

The German Federal Supreme Court, however, granted the parents’ claim based on general inheritance law provisions according to the German Civil Code (Bürgerliches Gesetzbuch – “BGB) and in particular based on the fundamental principle of ‘universal succession’ under Section 1922 (1) BGB. Upon the teenager’s death, her user contract with Facebook was transferred to her heirs by law.

“Memorialized Account” clause not effectively included

The German Federal Supreme Court ruled that it could generally be stipulated in a contract between the social media company and the user that the social media account shall not pass to the heirs upon the user’s death.

However, Facebook’s memorialized directive, concerning a deceased person’s profile and stating that a user’s account is non-inheritable, had not been validly incorporated into the user contract between Facebook and the deceased teenager. Furthermore, the respective clauses, not negotiated individually, would be deemed invalid.

According to Section 307 (2) no. 1 BGB, contractual provisions in pre-formulated terms & conditions are invalid, if they are inconsistent with fundamental ideas of a statutory regulation. In the present case, the German Federal Supreme Court found that Facebook’s pre-formulated memorialized directive was conflicting the fundamental principle of ‘universal succession’ under Section 1922 (1) BGB.

Contractual relationship between users and social networks not personal in nature

Facebook argued that the user contract with the deceased teenager was to be considered personal in nature due to the daughter’s personal communication with other users. Therefore, the account was not inheritable.

The German Federal Supreme Court disagreed. Although user contracts with social media companies are concluded based on the assumption that communication will be kept secret, the latter is still account-related. As a result, social networks are obligated to transfer communications to a particular user account but not necessarily to a particular person. Therefore, senders of relevant information cannot rely on the account holder’s sole knowledge concerning the transmitted information. Eventually, any account holder has to face the risks of abuse or simply the risk that the addressee will grant third parties access to his/her account.

Digital content comparable to diaries or personal letters

The German Federal Supreme Court further reasoned that the situation is similar to diaries or private letters. Although the corresponding rights are personal in nature, they pass to heirs according to Section 1922 (1) BGB. In the Court’s opinion, there is no reason to treat digital content differently.

Secrecy of telecommunications does not conflict with inheritance law

Furthermore, the statutory requirement to protect the secrecy of telecommunications, as set out in Section 88 TKG, does not contradict the heirs’ right to demand access to the deceased person’s social media account. Since heirs are not “third parties” within the meaning of Section 88 TKG because they succeed into the deceased person’s legal position, Section 88 TKG does not prevent the social media account from passing to them.

Data protection law does not oppose claim

Ultimately, the parent’s demand for access to their daughter’s social media account does not collide with data protection law. In concrete terms, it does not contradict the new General Data Protection Regulation (GDPR) which came into force on the 25th of May 2018.

However, the Court clarified that the GDPR only protects living persons and ruled that the transfer of personal data concerning other Facebook users, who have corresponded with the deceased daughter, was justified by both Article 6(1)(b) GDPR (“necessary for the performance of a contract”) and Article 6(1)(f) GDPR (“legitimate interests”).

Consequences from the judgement

The German Federal Supreme Court clarified open and important legal issues associated with handling digital legacies. Upon death of a person, his/her social media accounts pass to his/her heirs.

Although the exclusion of hereditability of membership accounts on social media remains possible, the practical implementation will become significantly more difficult. In any event, such exclusion by means of a pre-formulated provision in the terms & conditions of the social media company is not permissible.

However, if the holder of the social media account provides the social media company with an explicit and informed declaration that he/she doesn’t want his/her social media account to pass to his/her heirs upon his/her death, this might be treated differently. In the end, he/she might have legitimate motives to exclude his/her heirs from his/her social media account. It is now up to the social media companies to address this issue in a way acceptable to the German Federal Supreme Court.

 

 

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