Digital heritage: Digital data as a component of the heritage of a deceased person
By Angelina Vlachou*
In 2018, all of us use the Internet quite extensively; through this extensive use a large quantity of digital data which concerns us is gathered. This data stem from profile creation in social media, from our e-mail address, from websites, which a person might use for his/her business, etc.
When the person these data concern dies, these data fall under the notion of “digital heritage”. The discussion on digital heritage is huge.
In this initial stage, it must be noted that both national and EU legal provisions on the protection of personal data -including the recent General Data Protection Regulation (GDPR) Preamble 27- concern personal data of natural living persons.
In particular, GDPR leaves in the discretion of Member States to decide whether they will extend protection to deceased persons or not. There are countries, which have already provided for such protection, i.e. Denmark.
Thus, arises the legal (and real) issue of the possibility to offer protection or not, but also the legal handling of the large volume of digital data, which constitute the digital heritage of a deceased person.
The most well-known social media platforms have already faced the necessity to solve this issue. More specifically, they have faced the question of what is going to happen to their users’ accounts, who are not alive anymore.
There are two possibilities hitherto, which slightly differ depending on the terms and conditions of each company. On the one hand, there is the possibility to totally erase the account; this possibility is usually given only to close relatives of the deceased person and it is often needed to submit an electronic form and to present some documentary evidence.
On the other hand, platforms like Facebook, Twitter and Instagram, also offer the possibility to change an account to a memorialized account. In this option, the deceased user’s profile is preserved, while some sensitive personal data, such as address and contact information, are removed. Additionally, Facebook in particular deactivates the connection information for these accounts. As a result, if someone wishes to log in an account to have access to the deceased person’s data, he/she will face the message “We cannot share the connection information for a memorialized account. Connecting to a third person’s account violates our policy in any case”.
After all these, someone can easily wonder what happens to the large volume of digital data of a deceased person, which have been gathered for years, and more particularly in the case in which his closest persons wish to get access to them, as in the case of his material and intellectual property. The Federal Court of Karlsruhe, Germany, had to answer this question on 12 July 2012. This decision has no impact on the Greek legal order, but it constitutes one of the first judicial approaches of the impugned issue.
The dispute between the parents of a 15-year old deceased girl and Facebook was brought before the Court, which had to decide on the final instance. The dispute initiated from the fact that after the death of their daughter, the parents, who knew her password – since they were the ones who had created the account under the condition that they would also have access to it- wished to read her conversations on messenger, to see if she committed suicide or not. The account had been amended to a memorialized account – unknown by who- and thus, they could not do so. Therefore, the dispute went into courts.
In the first instance, the family was vindicated. The court of first instance accepted that the legal heirs of a deceased person inherit his/her digital data alongside with the rest of his/her property. This ruling was overturned in the court of second instance, which claimed that lifting the prohibition to access to the digital data of the deceased girl would constitute an excessive interference with the right to confidentiality of communications of the users, who are alive, and were communicating with the girl.
Finally, the Federal Court lined up with the court of first instance, adjudicating that there is no justification for handling the digital data of a deceased person in a different way than the rest of his property, which passes to his/her legal heirs.
The Court decided that the underage girl had concluded a contract of use with Facebook which -due to her death- passes to her parents-heirs. Therefore, her digital data were provided to the parents and the digital heritage was assimilated to the “analogue”. In other words, it was decided that the girl’s account on the social media is one of the property elements which passed to her relatives.
Nonetheless, this decision is only the beginning of the discussion and the legal “landscape” remains vague.
On the one hand, the assimilation of digital heritage to analogue appears to be convincing, particularly if we think that after death there is no prohibition on access to the written communications of a person. On the other hand, the particularity of digital data cannot be dismissed, since in the contemporary age, where technology progresses at a great rate, passing a large volume of digital files to persons other than the initial recipient, puts many rights (i.e. the right to confidentiality of communications, right to protection of personal data, right to privacy) of a vast number of persons under excessive risk. The number of persons under threat is much bigger than the number of persons concerned by some “traditional” communication.
These persons are, of course, the alive “followers-friends” of the deceased. While there is a lack of clear legal provision (in national and european level), it is deemed problematic to request from the judge to decide on permitting the transfer of digital data or not in each case. It is not an exaggeration to fear that decisions with a fundamentally different result will be issued, since these platforms have users all around the globe, in States with absolutely different legislations and legal systems.
The only way seems to be the uniform -as much as this is possible- regulation of the impugned situation, as is always suggested for the problems which arise in the digital age. The only thing that is for sure, is that the conversation has just begun.
*Angelina Vlachou is a lawyer. She holds a Master in Public Law and Political Science from the Aristoteleio University of Thessaloniki. She is a PhD candidate in the Law School of Aristoteleio University.