CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTEMPORARY ISSUES OF POST-MORTEM PERSONAL DATA … Finally, the case reached the German Supreme Court, which considered the first instance court’s approach as correct. The Court held that Facebook should provide the parents of the deceased girl with access to their daughter’s Facebook account. According to the German Supreme Court, the user’s agreement should not be seen as personal stricto sensu . In this case, the provisions of Section (§) 88 (3) of the Act regulating telecommunications are not violated, since from its point of view the heir cannot be considered as “other” person. Judge U. Hermann noted that as a rule after death, personal diaries and correspondence are usually transferred to the legal heirs, and there is no reason to treat digital data differently. The Court even mentioned that parents have the right to get information with whom their underage descendants communicate on the Internet. Regarding to the French courts, they adhere to a different (even opposite) approach. In the German and Italian case law there is not any difference between the personal and economic aspects of rights concerning human personality, the French case law recognizes such a distinction. It is possible to see it in the example of SA Editions Plon v. Mitterand  60 case, where the plaintiffs filed a lawsuit against SA Editions Plon, because according to the plaintiffs in the published book Le Grand Secret personal (medical) information about them without their permission was used. In this case, the French Cassation Court stated that the published private information was only a short part of the book and it did not affect the living relatives’ interests, because “the right to act in respect of privacy disappears when the person in question, the sole holder of that right, dies.” 61 , but the Court recognized that the SA Editions Plon (the book publisher) violated medical confidentiality and should be subjected to civil liability. In other words, family members cannot act on the basis of a violation of the deceased’s privacy, because the right to respect for private life is a non-transferable right (it disappears when the subject of the right dies), but they can act to protect their privacy. Some French scholars, such as B. Beignier, support the Cassation Court’s approach, because the idea of post-mortem privacy seems to them as “nonsense”. 62 However, in this regard, L. Thoraval tends to believe that meanwhile French case law refuses to recognize the existence of a right post-mortem privacy, the French lawmaker attempts to find some balance by admitting certain elements of privacy, and in this context the search for a new paradigm is needed in this issue. 63 It was not by chance that the examples of the judicial practice of Germany, Italy and France were chosen. First, they have a well-developed judicial practice in the field of post-mortem privacy protection and second, all of them, like most EU Member States, belong to the civil legal family. Using the example of their case law, we conclude that despite their belonging to the same legal family, each of them adheres to unique (even opposite) approaches, values, concepts and criteria regarding the protection of the personal data of the deceased not only in law-making, but also in law enforcement. Of course, in this context, it would be very difficult 60 SA Editions Plon v. Mitterand , Cour de Cassation, JCP 1977. II. 22894, 27. 05. 1997. 61 SA Editions Plon v. Mitterand , Cour de cassation [Cass.] [supreme court for judicial matters] May 27, 1997, JCP 1977, II, 22894 (Fr.) (citing December 14, 1999, Bull. Civ. 1, no. 345 (Fr.)), translated in Tony Weir, Institute for Transnational Law, Foreign Law Translations, UNIV. OF TEX. AT AUSTIN, SCH. OF LAW, http://www. utexas.edu/law/academics/centers/transnational/ work_new/french/case.php?id=1240. 62 See BEIGNIER, B.: Le Droit de la Personnalité. Paris: PUF Collection “Que sais-je?”, 1992. See also BEIGNIER, B.: Vie privée posthume et paix des morts . Paris: Dalloz, 1997, 255 p. 63 THORAVAL, L.: De la vie privée post mortem. Petite Affiches , 22/2019. Available at: https://www.actu- juridique.fr/civil/personnes-famille/de-la-vie-privee-post-mortem/.

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