Following a ruling of the Federal Court of Justice in Karlsruhe (Germany) beginning of July 2018, heirs have the right to access the Facebook accounts of their deceased relative. A Federal Court spokeswoman said that the verdict will also “affect other social media accounts, not just Facebook, but Instagram and so on”.

The issue brought to the court has not yet been resolved by legislators in most countries. There exists no uniform law on the subject. Let us underline that some countries, however, have implemented or are currently drafting specific legislation on post-mortem personal data and the heirs’ rights (ex :  Hungary or the United States).

The lack of a uniform legislation implies a lack of socially adequate and acceptable solutions. Should all pages be transformed into digital memorials? How long should they be kept for? Could the personal data of the deceased person be erased? If so, how long must it be kept for beforehand? What about the deceased’s will ? This questions and many more have yet to be answered in practice.

Mathias Avocats draws an overview and the case and analyses the potential impacts it may have.

What are the facts?

The case started a few years back. The parents of their dead teenage daughter brought an action in a German court to access their daughter’s Facebook account. They were trying to establish whether she had committed suicide and whether she had been bullied. Facebook argued that access to her chat messages would compromise the teenager’s privacy. It had also turned the girl’s daughter into a “memorial page”. The first court in Berlin sided with the parents.

On the appeal of Facebook, however, the Appeals court sided with the company and held that “a contract existed between the girl and the social media company and that it ended with her death”. The parents then appealed to the Federal Court of Justice in Karlsruhe (Germany).

The Federal Court sided with the parents. They must therefore have access to their daughter’s data and more specifically her messages. It further stated that a social media account can be inherited in the same way as letters. This ruling will most likely set a new privacy landmark.

What are the potential impacts?

In practice, this new precedent will most likely have far reaching consequences. Users of social media accounts will now have to consider what is to happen to their personal data after their death. Do they want all their heirs to have access to all of their personal data or limit their access? How can they define their wishes ? Which legal instrument can be used?

Let us underline that France has started tackling the subject with the Law for a Digital Republic of October 7th, 2016. It created Article 40-1 of the French Law on personal data which holds that “any person may define guidelines on the retention, erasure and disclosure of personal data after death”. A decree must still be taken to determine the modalities of the post-mortem guidelines.

Social media companies, in general, must start taking measures to allow their users to determine the use of their date after their death. Who will have access? How may relatives access to deceased relative’s data? Which may relatives can access the data?  Can the data be erased upon request?

Mathias Avocats remains at your disposal for any further questions you may have.