Digital estate

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This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

The digital estate or digital legacy is a large number of legal positions of a deceased internet user , in particular their contractual relationships with host, access or e-mail providers as well as with providers of social networks or virtual accounts. It also includes the property rights of the deceased to hardware, usage rights to the software, copyrights and rights to stored images, forum entries and blogs.

Legal issues

It is controversial whether the digital estate is inheritable. Decisions of lower court so far, as well as parts of the literature, advocate the inheritance of the digital estate. In contrast, parts of the literature generally reject heredity or differentiate between highly personal and other inheritance items.

Proponents of the inheritance of the digital estate argue as follows: 

The heirs have a legitimate interest in gaining access to the data of the deceased, as they are obliged to properly administer and settle the estate ( Section 1967 BGB). In addition, they have six weeks to decide whether to accept or reject the inheritance ( Section 1944 BGB), for which they also have to look through the testator's e-mails for outstanding invoices, for example.

The legal positions covered by the digital estate belong to the inheritance and are transferred to the heir (s ) by way of universal succession ( Section 1922 (1) BGB). As a result, the heirs of an account holder, for example, enter into the user contract with the provider with all rights and obligations and they are basically entitled to the same right to access and use the accounts as the testator previously, including the right to information against the provider with regard to access and contract data.

Accounts

In literature and jurisprudence it is disputed whether a Facebook account as a highly personal right ends with the death of the user and therefore the access authorization could not be inheritable. The III. Civil Division of the Federal High Court ruled on 12 July 2018 that the contract in principle on an account at a social network by way of universal succession passes to the heirs of the original account beneficiary, so this a claim against the network operator for access to the account, including the fact have available communication content.

In addition, accounts have no national borders. It is therefore important which law applies in the event of a dispute. In a lawsuit brought by heirs against Facebook , a decision has to be made as to whether German or Irish law is applicable. Insofar as it is mainly a matter of contracts between entrepreneurs and consumers, these are generally subject to the law of the consumer's habitual residence ( Art. 6 of the Rome I Regulation ). Differing choice of law clauses of the provider are subject to the content control for general terms and conditions in Germany according to § 307 BGB.

Emails

From a legal and political point of view, it is still unclear whether heirs can also access e-mails and other communication content of the deceased, such as chats . On the one hand, inheritance law could oblige the provider to hand over e-mails to the heirs in a similar way to unopened letters. However, the surrender would, on the other hand, protect the sender's telecommunications secrecy in accordance with § 88 TKG and therefore cannot be successfully sued by an heir. It is also still unclear whether users can or must do without the protection of telecommunications secrecy, as when using analog technology. It can namely be in the mutual interest if the heirs take a look at the last email traffic and z. B. settle outstanding bills or cancel online contracts and paid forum memberships. In order to regulate the legal relationships of the testator uniformly, a clarifying restriction of telecommunications secrecy in favor of inheritance law would be desirable.

Profiles in social networks

Profiles in social networks are subject to post-mortem privacy protection . The relatives therefore have the right to forbid any manipulation by the heirs. They exercise the postmortem right of personality for the testator and can legally prevent injuries with injunctive relief. Insofar as hereditary access to a Facebook account is affirmed, there could only be a “passive reading right”, but not a right to actively continue the account.

Disclosure obligations

The Berlin Regional Court issued a fine on Facebook on February 13, 2019: Facebook has not yet fulfilled its obligation to give the heirs access to the full user account and the communication content contained therein . Handing over a USB stick with a 14,000-page PDF document is not sufficient.

Practical handling

There are already numerous companies in the US that manage the digital estate of the deceased. Digital estate administrators are also no longer uncommon in Germany . The consumer advice center and Stiftung Warentest recommend, in the event of death, where access data of social networks are stored for the eventual deletion of a profile.

The following approaches have essentially been established for the practical handling of a digital estate:

System-specific approach

According to the suggestions of the legal scholar Mario Martini , Google offers an account inactivity manager for its services, with the help of which each user can make settings for the further use of the data after his death. With Google+ , the owner of a user account can, for example, set up to ten people to be notified and authorized to access the account after which latency period if the account is inactive , or whether the account, including all stored files and data, is automatically deleted after a specified time .

System-neutral approach

This article or section needs to be revised. Further details should not apply to the lemma in the current definition, because only access data are made available here, which -gf. contrary to the contractual regulations - could be used by the heirs without the actual legal position being clarified. - Zxmt Nothing protects an article from deletion as reliably as a deletion request from me. 11:34, Jul 13, 2018 (CEST). Please help to improve it , and then remove this flag.

Every natural person can set up a digital locker, depending on the provider, for a monthly or one-time fee, in which personal access and passwords are stored in encrypted form. After the owner of the locker dies and a certified death certificate is presented , the data is then passed on to the relatives. The VZBV advises against this , however, as the disclosure of passwords can lead to fraud and theft.

Computer forensics

The computer of the deceased is examined by IT specialists for evidence of a digital estate. The main task is to secure all data on the devices, including bypassing passwords and other security measures. The aim is to save digital heritage on local devices. You can also find traces of communication to identify possible Internet transactions. The computer forensics is the only means to determine the digital heritage on devices such as computer, tablet, smart phone, external hard drives etc..

Undertaker service

Some funeral directors offer bereaved relatives the ability to track the deceased's digital estate as a service. Specialized companies are commissioned to research banks, insurance companies and internet platforms to determine whether the deceased had an account there. However, this only works for services that are actively contacted and where the deceased was registered with a real name and can be clearly identified. Accounts under a pseudonym or with foreign or unknown providers can usually not be recorded here.

United States

In most states of the USA there are legal regulations on the rights and obligations of the provider towards the survivors of an Internet user. The Uniform Fiduciary Access to Digital Assets Act (UFADAA) primarily provides that the user himself determines access to his data after his death while he is still alive, but in any case the providers include corresponding regulations in their general terms and conditions.

Survey

According to a representative survey from 2016 in Germany, only 8% of those questioned had stored their access data for all services and online accounts for survivors. According to estimates by the e-mail providers Web.de and GMX from 2019, 15% of Internet users had settled the discount for at least some of their online accounts, for example by storing access data for a person of trust. The media emphasize that the digital legacy is now in fact on the same level as physical legacy and, for example, can also include access to photos, e-mails and contract documents.

See also

literature

Books

  • Stephanie Herzog / Matthias Pruns: The digital inheritance in the provision and inheritance law practice , zerb Verlag, 2018. ISBN 978-3-95661-070-7 .
  • Michael Thiesen, data in the inheritance - the digital inheritance between inheritance and legal enforcement , dissertation, Peter Lang Verlag, Frankfurt 2017.
  • Antonia Kutscher: The digital estate . Vandenhoeck & Ruprecht , 2015. ISBN 978-3-8471-0436-0 .
  • Sophie Mecchia, Michael Sittig: The estate set - testament, asset overview, digital estate, funeral order , Stiftung Warentest , 2016, ISBN 978-3-86851-388-2 .
  • Katharina Seidler: Digital Legacy - The Postmortem Fate of Electronic Communication , Dissertation, 2016.
  • Tobias Schrödel : The digital death. Why I cracked a dead girl's cell phone, Arena Verlag, 2018. ISBN 978-3658156510 .

Magazine articles

  • Eberhard Rott, Alexander Rott: Who Owns the E-Mail? Legal and practical problems with the digital estate. NWB Erben und Vermögen, 2013, pp. 160–168.
  • Maike Brinkert, Michael Stolze, Joerg Heidrich: Death and the Social Network - Digital Legacy in Theory and Practice. Journal for Data Protection, 2013, Issue 4, pp. 153–157.
  • Mario Martini : The digital legacy and the challenge of post-mortem privacy protection on the Internet. Juristen-Zeitung, 2012, issue 23, pp. 1145–1156.
  • Karsten Dopatka: Digital Legacy - Handling Electronic Data After Death. New legal weekly journal 2010, NJW-aktuell issue 49, p. 14.
  • Stephanie Herzog: The digital legacy - a hitherto hardly seen and often misunderstood problem, Neue Juristische Wochenschrift 2013, Issue 52, pp. 3745–3751.
  • Florian Deusch: Digitales Die - Das Erbe im Web 2.0 , in the magazine for inheritance law and asset succession 2014, issue 1, pp. 2–8.
  • Matthias Pruns: Don't be afraid of the digital estate! , Neue Wirtschafts-Briefe issue 40 2013, pp. 3161–3167 and issue 29 2014, pp. 2175–2186.

Podcasts

  • Stephan Lorenz, Thomas Sagstetter, The “Digital Legacy” - Inheriting and inheriting in the digital world , Podcast LMU on iTunes, Podcasts Apple

Broadcast reports

Web links

Individual evidence

  1. ↑ a b c Christian Solmecke: The digital legacy - What happens to the data that the deceased leave behind on the Internet? In: wbs-law.de , February 2, 2015
  2. ↑ Bernhard Knies: The LG Berlin on the inheritance of the Facebook account. In: new-media-law.net , June 14, 2016
  3. ↑ a b c Chamber of Commerce: Decision still pending in the legal dispute over inheritance on Facebook account (PM 22/2017). Press release of April 25, 2017 on Berlin Regional Court, judgment of December 17, 2015 - 20 O 172/15
  4. ↑ Contract for a user account with a social network is inheritable. Press release No. 115/2018. Federal Court of Justice, July 12, 2018, accessed on July 12, 2018 (judgment of July 12, 2018 - III ZR 183/17).
  5. ↑ See on this and on the generalizability of the judgment for the entire digital estate: Thomas Sagstetter, discussion of the BGH v. July 12, 2018, III ZR 183/17 - "Digital Estate" with further evidence.
  6. ↑ KG Berlin, judgment of May 31, 2017 - 21 U 9/16 (not final)
  7. ^ DAV: Regulate digital inheritance according to the principles of inheritance law. DAV press release from September 13, 2016
  8. ↑ Thomas Sagstetter: Review of BGH v. July 12, 2018, III ZR 183/17 - "Digital Estate" with further evidence. Retrieved April 16, 2019 .
  9. ↑ What to do when someone dies? A guide to funeral matters. 18th edition. Berlin 2010, ISBN 978-3-936350-56-2 , p. 164.
  10. ↑ Digital inheritance: how heirs can close online accounts. Stiftung Warentest, February 26, 2015
  11. ↑ Google takes precautions in the event of death. In: Zeit Online . Retrieved May 3, 2013.
  12. ↑ Digital inheritance: how heirs can close online accounts. In: test.de , February 26, 2015, accessed on February 26, 2015
  13. ↑ Regulate the digital estate - do not entrust data to third parties. In: Focus , April 14, 2014, accessed April 27, 2015.
  14. ↑ Digital estate administrator: Erased. In: Spiegel , July 26, 2015, accessed on July 28, 2015
  15. ^ Fiduciary Access to Digital Assets Act, Revised (2015). Uniform Law Commission, accessed May 27, 2017
  16. ↑ Victoria Blachly: Uniform Fiduciary Access to Digital Assets Act: What UFADAA Know. Probate & Property Magazine: Volume 29 No. 04, 2015
  17. ↑ BT-Drs. 19/13275 p. 3.
  18. ↑ Hardly anyone manages their digital estate. In: faz.net. November 21, 2019, accessed November 22, 2019 .