News about the digital heritage

Sabine Münzel

Hardly anyone lives today without digital media – nonetheless, the questions around this topic are still receiving too less attention in the context of legal provision and the organization of succession. Although in a succession to the so-called digital heritage many unpleasant areas of conflict might arise.

One of the key questions about this topic is the following: do heirs have the right to access the deceased's emails, their data in the cloud, and social networks? In July 2018, an almost path-breaking decision of the German Federal Court of Justice (BGH) made the answer very clear: the universal succession pursuant to § 1922 BGB (German Civil Code) also covers the so-called digital heritage. This means that the heirs are just as fully entitled as the deceased himself. The relevant contractual agreements that the deceased has concluded with his contractual partners are therefore authoritative. These agreements are transferred to the heirs.

In many cases it was argued that in the case of a surrender obligation, the data of third parties which are worth to be protected would also be affected. Concerning this the BGH has now stated clear: For the digital heritage nothing would be different to the normal offline mail correspondence.

In these cases as well the communication partner of the deceased has to expect that the letters fall into the hands of the heirs. The choice of medium would therefore be irrelevant to this question. The heir has to be treated as if he was the deceased himself. The protection of the personal rights of those affected persists and would not be affected by the fundamental inheritance of the digital heritage.

In its decision, the BGH has also clarified the conditions under which the rights of the heirs of the data of the deceased may be restricted or excluded in individual cases. In general it would be possible that the respective contract between the deceased and his contracting party contains provisions which exclude the heirs from access to the data. Thus, each user can set by appropriate regulations with its contracting parties that his heirs should not be allowed to view the data.

If the heirs are excluded from access to the data of the deceased by the general terms and conditions (AGB) of the provider, the strict legal requirements for the validity of the general terms and conditions must be examined in each case. A complete exclusion of the heritability of a contractual relationship can not be stipulated by AGB, because such a contractual regulation would deviate too far from the legal regulation and would therefore be invalid.

There is now - and this is very pleasing - much more legal clarity in this increasingly important area of life.


XLNC MAGAZINE | No. 02 | November 2018

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