After You: Legal Insights into Virtual Afterlife and Digital Legacy

While Digital Inheritance is a relatively recent concept in legal literature, its significance has grown substantially in both everyday life and legal contexts due to advancing technology. This is particularly evident in the realm of digital assets, including cryptocurrencies, social media accounts, and iCloud accounts, all extensively utilized in our increasingly digitalized world. The potential implications of transferring or not transferring these digital assets have sparked considerable discussion surrounding the loss of associated rights.

What is Digital Legacy?

Inheritance traditionally encompasses the totality of assets and debts left by an individual, transferred to their successors upon death. In the digital age, the notion of inheritance extends to computer-based material rights and debts, giving rise to the concept of digital inheritance. This modern perspective includes a diverse range of new digital assets, reflecting the expansive nature of our increasingly digital world. Among these assets are social media accounts, serving as repositories of personal memories and connections; online game characters with accrued achievements and virtual possessions; and cryptocurrency accounts representing a form of decentralized and digital wealth.

As there is no specific legal framework for the transfer of digital inheritance, navigating within the boundaries set by precedent decisions in our country and across Europe is imperative. A notable instance occurred in November 2020 when the Antalya Regional Appeals Court in Türkiye made a groundbreaking decision. In this case, following the death of a spouse, the plaintiff sought access to the deceased's e-mail and iCloud account, which contained important documents such as photos and videos. In its justification, the court emphasized the necessity of including digital assets in the overall estate. The ruling underscored that all digital assets, encompassing social media accounts and digital wallets, should be taken into consideration when determining the estate of a deceased individual.[1]

A comprehensive analysis reveals noteworthy details in examining a pivotal decision in Europe, specifically the 2018 ruling by the Federal Court of Germany (“BGH”). In a case where a mother filed a lawsuit against Facebook following the death of her 15-year-old daughter, who was a user on the platform, the mother sought access to her daughter’s correspondence to determine the actual cause of her passing. However, Facebook memorialized the account since the deceased user had not specified or informed the platform about the designated inheritor of the account.[2]

In the culmination of the lawsuit initiated by the mother, the case reached its final resolution at the BGH. The court upheld the mother’s claim, citing the perspective outlined by the Association of German Lawyers in 2013. Guided by the fundamental principle of inheritance law, the 'principle of universal succession,' the court ruled that the daughter’s Facebook account should be considered part of the estate and consequently transferred to the mother as the rightful successor.[3]

The ruling highlights the imperative for digital platforms to align their policies with legal principles, emphasizing the need for users to explicitly designate inheritors for their digital legacies. This decision also underscores the growing recognition of digital assets as integral components of an individual's estate, subject to the same legal considerations as tangible assets. Moreover, the pronouncement of the BGH emphasizes that digital materials should be treated akin to letters and diaries, especially in Turkish inheritance law, where items of exceptional memorial value can be transferred to heirs - making the BGH decision notably fitting for our jurisdiction.[4]

In light of these rulings, it becomes essential to scrutinize various contentious issues, including the terms outlined in user agreements for social media applications, telecommunication privacy, the protection of personal data, and the privacy of private life.

User Agreements in Social Media Applications

According to the dominant and mandatory principle of succession in inheritance law, all assets and liabilities in the estate, including those with economic value, are immediately transferred to the successors upon the death of an individual. This raises a crucial question about the transferability of the user agreement between the service provider company and the deceased. Unless explicitly agreed otherwise, the right to actively utilize the account is considered exclusive to the deceased and not automatically included in the inheritance.[5] While it is acknowledged that all rights and obligations arising from the debt relationship to which the deceased is a party are transferred to the successors, the specific issue of user accounts requires scrutiny.

The BGH, relying on this perspective, asserts that the right to access user accounts is indeed transferred to the successors in accordance with the general principles of inheritance law. However, this transfer is limited to the right of access alone. Consequently, the active utilization of the account, a strictly personal right exclusively reserved for the deceased, does not transfer to the successors.

Telecommunications and Privacy

As a consequence of the BGH decision, criticisms may emerge asserting that transferring social media accounts to heirs could infringe upon telecommunications and privacy rights protected by telecommunications law and other legal frameworks, including constitutional rights. One could argue that, despite the inclusion of privacy principles in the Constitution, heirs might fall outside the scope of protection, considering that inheritance and property rights are also constitutional rights.

Contrarily, proponents of the transfer of digital inheritance may argue that the privacy of communication and private life principles should primarily safeguard the secrets and confidentiality of living individuals. Therefore, it can be contended that these regulations should not be interpreted within the context of inheritance law.

In response to these criticisms, Germany has revised its telecommunications law, recognizing the increasing impact of digital heritage on our daily lives. The newly enacted 'Telecommunications, Telemedia, Data Protection Act,' effective since 2021, clarifies that communications confidentiality will not hinder legal inheritors. They are now expressly authorized to access the data of deceased individuals.[6]

While these laws and approaches support the notion that access to social media accounts by inheritors, resulting from the transfer of digital inheritance, does not breach the privacy and confidentiality of communication for the inheritor, it is crucial to note that a message sent to another user's account is not exclusively visible to the account owner. The service provider’s obligation is to forward this correspondence and content to the user’s “accounts’’. Therefore, when a third party sends a message to an account, they can ensure that the message reaches the intended account. However, the third party cannot expect the message sent to the account to be exclusively seen by the account holder. Consequently, unauthorized recipients might gain access, even with the account owner's consent or the passing of the user agreement to the inheritors upon the account owner's demise.[7]

Protection of Personal Data in the Digital Afterlife

One of the rights strictly attached to an individual is the protection of personal data and secrets. In the rapidly evolving sphere of digital inheritance, safeguarding personal data stands as a paramount concern, intricately weaving through the relationships of heirs, third parties, and the online remnants of the deceased. Criticism has arisen regarding whether access to social media accounts adequately safeguards the personal data of both the heir and third parties interacting with the heir. BGH asserted that the European Union General Data Protection Regulation exclusively offers protection for living persons. Since the data owner is deceased and the inheritors are the parents, the court, citing legitimate interest, concluded that the parents’ access to the social media account does not violate the rights of the deceased.[8]

Even if it is acknowledged that the personal data of the deceased is protected, criticism may arise concerning data privacy, especially regarding third parties who interacted with the social media account of the deceased, due to the lack of their explicit consent. However, as stated by the court, both the service provider and users are unable to determine if the individual accessing the account and sharing content is genuinely the rightful account holder. Third parties interacting with the account should consider the risk that the account holder might share the account details with another person, or show the messages or contents to others.[9]

BGH uses an analogy involving physical letters to support its decision:

“…the company delivering the letter is only responsible for putting the letter in the correct mailbox and is not responsible for whether the letter is opened by the recipient or whether the recipient shows the letter to third parties. Social media users of average intelligence are as aware as the senders of letters that once they have sent a message, they cannot check who has read it and cannot take it back.”[10]

Furthermore, though there is a doctrinal opinion advocating for a distinction between the economic and personal digital inheritance of the heir, with the aim of transferring digital assets to the next of kin instead of inheritors, the lack of clarity on how or by whom this distinction should be made renders this opinion susceptible to criticism.[11] Additionally, discussions and disagreements persist on the issue of digital heritage, including the transfer of the contractual relationship mentioned earlier and the contention that the message transmitted to the account is not protected in terms of who will have access to it.

Conclusion

It is evident that digital heritage and its inheritance will hold paramount importance in the upcoming years. At this juncture, a delicate balance must be struck between constitutionally protected rights to privacy and the emerging rights related to digital heritage, necessitating the formulation of pertinent legal regulations.

Effective digital heritage management also assumes a critical role in safeguarding against rights infringements and potential victimization. In this context, implementing proactive measures, such as incorporating necessary clauses into contracts, becomes imperative. This approach aims to prevent the violation of rights concerning personal data and confidentiality, ensuring resilience in the face of challenges within both business and private domains.

With thanks to Betül Erdoğan for her assistance

Endnotes