Heirs have access to accounts on social networks

Can a mother as heiress access her deceased daughter’s Facebook account? The Federal Court of Justice answered this fundamental question with "Yes".

A 15-year-old girl was hit by a subway in Berlin’s Schonleinstrasse subway station under previously unexplained circumstances and died shortly afterwards in hospital. The girl’s mother then tried to log into her daughter’s Facebook account. The daughter opened the account with her mother’s consent.

The mother hoped for clues as to whether it could have been a suicide. Can one learn something about possible motives from the daughter’s chats? Mother wanted to know. However, she was unable to access the account because Facebook had put the account in what is known as "memorial status". Access, even with the user data, is then no longer possible. However, the content of the account remains.

Because Facebook denied her access, the mother took her to court. The court proceedings in Berlin attracted a great deal of attention nationwide.

This is about "new legal territory", the presiding judge at the Berlin Chamber Court had already said. Traditional inheritance law meets the digital world. In the Civil Code, Section 1922, Paragraph 1:

"With the death of a person (inheritance), their property (inheritance) as a whole is transferred to one or more other persons (heirs)."

This means: when someone dies, property, rights and duties pass to the heir. Thinking "analogously" this means: All letters or diaries of the daughter would, for example, automatically become the property of the mother. But what about the "digital legacy", i.e. a Facebook account? Has the mother inherited it along with the stored content? And what role does data protection play in relation to the daughter’s possible chat partners?

The Berlin Court of Appeal had decided: The mother has no right to access her daughter’s account. The court did not expressly determine whether a Facebook account can be inherited or not.

In any case, the "telecommunications secret" forbids the mother from accessing the account. What was written between the daughter and her chat partners is protected by telecommunications secrecy. The decisive factor for the judges is data protection for the daughter’s chat partners. As long as they do not agree, the mother is not allowed to access the content. As a result, data protection beats the right of access.

Parental custody also does not allow access, because this right expires with the death of the child. With regard to the parents’ personal rights, the court finally said: Despite the "understandable wish of the parents" to research the reasons for the tragic death of their child, there is no right to access the account. The judges were also emotionally occupied with the case, which can be seen in such formulations.

The Federal Court of Justice (BGH) has checked whether the legal assessment of the case is correct. Precisely because this is new legal territory, different evaluations are possible.

At the hearing in Karlsruhe, the presiding judge had made it clear right from the start: unlike the Berlin court, it would not be left open, unlike the Berlin court, but would rather be decided explicitly. The telecommunications secrecy, on which the Kammergericht had focused, will not be the focus of the judgment.

The decisive factor is whether the contract between the daughter and Facebook can be inherited or whether this is not possible as an exception. Is this such a "highly personal" contract that, for once, it cannot be passed on to the heirs? Does the protection of the people who have chatted with the daughter speak against it? Can they trust that the written content will remain secret even after the chat partner dies? How does it compare to a letter that is definitely inherited and that can have very personal content?

Those were the questions the presiding judge asked in the Karlsruhe courtroom.

The BGH has now decided: Parents must be granted full access to the Facebook account of their deceased child. As heirs, you would have a legitimate interest in your child’s digital estate. Since diaries or personal letters can be inherited, this must also apply to a digital estate. This does not violate data protection law.

By the way: The result of the judgment will of course apply to all constellations of an inheritance. So not only when a child dies, but also in the opposite case, for example, that children want to see their parents’ accounts.

The topic of "digital inheritance" has definitely picked up speed in legal policy in recent years and is being discussed intensively in the professional world. The current coalition agreement states:

"We will regulate the inheritance of digital property (e.g. user accounts, databases) in a legally secure manner." (Paras. 6204, 6205).

So far, however, there are no indications that the issue has already been specifically addressed in Berlin.

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