CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTEMPORARY ISSUES OF POST-MORTEM PERSONAL DATA … acquired during his life is protected. However, since the protective effects of human dignity on the one hand and general personal rights on the other are not identical, the data of the deceased is much less protected than those of a living person. It the case of Mephisto  53 , the German Constitutional Court concluded that the deceased person’s dignity, provided for under Article 1 of the German Basic Law, had paramount significance and even exceeds the constitutional right to freedom of artistic expression provided for in Article 5. In the case of the Strauss Caricature 54 , the German court recognized the Bavarian Prime Minister’s caricature as a violation of personal dignity that is provided for under Article 1 of the Basic Law and there should be no reference to Article 5 for such a caricature. In another case, the German Supreme Court held that even in the case, when the deceased person image or likeness was used, the right to compensation for illegal commercial use of the personality still exists, and this right transfers to their heir, that should be realized according to the deceased person’s expressed or presumed will (see the Marlene Dietrich case). A similar approach is supported by the Italian courts. For example, in the Audrey Hepburn case 55 the Italian court confirmed that commercial use of Audrey Hepburn’s likeness without authorization violated (post-mortem) image rights. Court stated in its decision that the ways in which the defendant company remade the image of the Hollywood actress (depicting her covered in tattoos or with a raised middle finger) undermined the dignity and reputation of Hepburn’s heirs, which led to the loss of the commercial value of the image. In this regard, F. Patti and F. Bartolini even argue, that “The solutions adopted by the German judgment also appears to work properly in the Italian legal system. It is therefore possible to state that in a hypothetical analogous case, Italian judges would have ruled as the German judges did with respect to the principle of universal succession and the application of rules on unfair terms.” 56 However, we should pay attention to the fact that “Different to German law, the Italian legal system now provides a specific data protection regime for the deceased. Such a special branch of data protection law seems useful in order to avoid some of the problems that affect the German solution based on inheritance law, namely the possibility of excluding the inheritability of the account by contractual means”. 57 The case concerning providing access to the content of the deceased user’s Facebook account in German Courts is of particular interest. The case was disputable and complex enough for German judges to solve it explicitly. In this case, the plaintiff was the mother of a 15-year-old daughter who committed suicide. In the hope of revealing the motives for the tragic act of her daughter, the mother turned to Facebook with a request for access to her deceased daughter’s account, but the operator refused to provide such access, stating that this is impossible under the terms of the user’s agreement. Then the plaintiff filed a lawsuit against Facebook for recognition of the right to access the content of the Facebook account of her deceased daughter. The German first instance court held that Facebook should provide access to the deceased’s account with all its contents to the parents as heirs, considering that under the user agreement the testator’s rights are inherited in the order of universal succession and 53 Federal Constitutional Court (First Senate) 24 February 1971 BVerfGE 30, 173 – Mephisto. 54 Strauss Caricature, 75 BVerfGE 369 (1987). 55 Court of First Instance of Turin, Judgment No 940/2019, 27 February 2019, General Docket No 12322/2017. 56 PATTI, F. P., & BARTOLINI, F.: Digital Inheritance and Post Mortem Data Protection: The Italian Reform. European Review of Private Law , 2019, vol. 27, no. 5, pp. 1181-1194. 57 Ibid.

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