CYIL vol. 11 (2020)

ONDREJ HAMUĽÁK – HOVSEP KOCHARYAN – TANEL KERIKMÄE CYIL 11 (2020) according to the provisions of Section (§) 307 (1) and (§) 399 of the German Civil Code, the universality of succession should prevail over the terms of the user’s agreement. The Court also stated that the succession does not mean that the heirs’ ownership rights are transferred to the Facebook server, but it is qualified as the right to unrestricted access to the content on the testator’s Facebook account that is hosted on the operator’s server. The principle of universal succession also applies to the particularly protected personal data of the testator, including those protected by the user agreement with the operator. With such inheritance, it seems almost impracticable to divide the property rights from the non-property ones, because according to Section (§) 2047 (2) and (§) 2373 of German Civil Code such a division is alien to the civil law provisions on inheritance. However, the case did not end there and according to the Facebook lawsuit, the Berlin High court (the Court of Appeal) overturned the German first instance court’s decision and concluded that this requirement of parents to access their deceased daughter’s Facebook account contradicts the Act of telecommunications (namely Section (§) 88 (3)), considering it erroneous to recognize the plaintiff’s right to full access to the deceased’s Facebook account. The Court pointed out that telecommunications privacy is included in the basic rights of the individual and in accordance with Article 5 of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Since both parties are required to maintain the communication privacy, the third- party’s access violates the legitimate interests of Facebook. According to the High Court’s position, in essence, the transfer of data to third parties requires the consent of both parties with the agreement and the accumulated data should be preserved unchanged post-mortem without the right of access to it by third parties, including heirs. In its reasoning, the Court mentioned that the relationship under the contract for the provision of telecommunications services between the user and the operator has an inherent attribute of trust, so the subsequent disclosure of data without the consent of one of the parties violates this attribute. The heir’s access to the deceased’s Facebook account content creates conditions for violating the rights of third parties who were parties to the communication relationship with this user during the latter’s lifetime. At the same time, the judges recognized that this decision would be disputable and permitted an appeal to it to the German Supreme Court. It should be noted that the High Court’s approach lead to serious criticism by scholars in the field of inheritance law. 58 They argue that the Court’s approach of non-recognizing the database content related to the user’s identity as inherited property is an incorrect policy, because they have the characteristics of the user’s copyright objects and have a property value. According to the scholars, the interests of the testator’s family include the databases content related to the user’s family, for example the user’s personal works, photos, graphic images, family correspondence and so on. These intangible objects reflect family values: they are an integral part of the spiritual integrity of the testator’s family, so that is why they should be considered as an integral part of the inherited property. Therefore, the Court’s policy on access prohibition to such objects after the user’s death not only violates the spiritual integrity of the family, but also excludes the possibility to transfer the copyright of the user’s works to the heirs, thereby causing harm to the inherited property 59 . 58 See HERZOG. S.: Digitale Nachlass – eine Bestandaufnahme auf erbrechtliche Sicht. In Materialen von DAV Symposion „Digitale Nachlass“. Berlin: Kammergericht am 25. 01. 2018. 59 Ibid.

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