Is a Facebook account inheritable under German law?

 

By Katja Zimmermann

 

For most of us, the use of Facebook has become a daily matter of course. But have you ever asked yourself what will happen to your account after you have passed away?

The pivot of the Facebook case is the tragic death of a 15-year-old girl in Berlin. Although it is known that her death was caused by a fatal collision with a train in a local metro station, the exact circumstances surrounding her death could not be revealed to date. It is thus uncertain whether the collision was the result of an accident or suicide. On the quest for answers, her parents tried to access her Facebook page. Although they possessed the required log-in details, which their daughter provided them with in exchange for their permission to use Facebook, their log-in attempt proved unsuccessful. This was due to the fact that their daughter’s Facebook page had been memorialized by one of her Facebook friends. It should not be forgotten that access to the account is not only vital for the processing of the loss. Connected herewith is a claim of compensation for non-pecuniary damages and loss of salary that was put forward by the metro driver; a claim that is based on the assumption that the girl committed suicide and thus acted negligently towards him. Nevertheless, Facebook has rejected all requests by the parents to unlock the account. Therefore, the parents began court proceedings against Facebook to demand access to the account on the basis of succession law. The court was thus confronted with the question whether a Facebook account is inheritable.

 

The Ruling of the Regional Court (“Landgericht”) in Berlin

At first instance, the question was put to the Regional Court in Berlin. The Court found that the parents had inherited the rights and duties connected to the contract that was concluded between their daughter and Facebook. This was due to the fact that a contract to use Facebook falls within the scope of the universal succession principle that is laid down in §1922 of the German Civil Code. If this were not the case, it would mean that personal digital data in the form of email communications or messages on social media would enjoy a different legal treatment than personal paper-based data such as letters, photos or dairies, which are inheritable. In the opinion of the Court, this is not justifiable. Therefore, it was held that Facebook must grant the parents access to their daughter’s Facebook account.

 

The Ruling of the Court of Appeal (“Kammergericht”) in Berlin

Facebook successfully appealed this judgment. The Court of Appeal in Berlin, coming to a different conclusion than the Regional Court, held that Facebook does not have to grant the parents access to their daughter’s account. Rather unfortunately from a property law perspective, the Court did not rule on the question whether a Facebook account is inheritable. This exercise was deemed irrelevant as the Court found that granting access would in any case constitute a violation of the confidentiality of telecommunications as enshrined in §88 (3) Telecommunications Act and article 10 (1) Basic Law. Yet, it remains to be seen whether either party will make use of their right to lodge an appeal to the Federal Court of Justice.

 

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