The legacy online: what happens to your messages and social media after death.
Have you ever stopped to think about what happens to their digital accounts, the files you have stored in the cloud, or even on social networks, after his death. In this reflection, this is more necessary than ever, giving rise to a concept that is relatively new to the digital heritage.
With the increasing use of electronic devices and online platforms, it has become common to store your important data in the digital environment. Thus, the question arises as to who is entitled to access and manage the property following the death of its owner? Even without any special regulations in Brazil, with the theme of challenges lawyers and family members, creating legal uncertainty.
The digital heritage can wrap their personal files, pictures, e-mails, and bank accounts in digital currencies and virtual, social networking sites, software licenses, and other intangible assets, net. In some cases, the value is a purely emotional; on the other, it represents an authentic heritage in the economy.
According to brazilian Law, the succession to occur at the point of death, and the legacy that is passed on to the heirs or legal writers, as referred to in art. 1.784 of the DC –1. , However, when it comes to digital assets, the transfer is not always that simple. All rights personalíssimos, such as social networking sites, are non-transferable due to their nature, as laid down in art. 11 of the CC –2 unless an express provision in a will or a provision in the voluntary that is compatible with the terms of use of the platform. Although there is no specific regulation on digital heritage, however, the understanding of these profiles, because they deal with issues of identity, image, and for the privacy of the owner, do not transfer to the heirs, being the responsibility of the owner to express their will in a life-and the fate of your data and your devices.
An emblematic example of this argument is the case, res judicata for the TJ/SP) (Rev. Cív. 1119688-66.2019.8.26.01003), in which the mother of a young man who died filed a lawsuit against Facebook after the exclusion of the needs of the child. The user, in the life he had chosen, by the removal of the account after his / her death, as set forth in the terms of use of the network. The Justice found that there is a value associated with the associated with your account, and, in the case of the law the very personal, would not be broadcast to the eyes.’
In spite of this, other court decisions have recognized that the right of family members to gain access to and preserve the profile of digital as a way to secure the right of the memory. This was the reasoning of the ECJ, SP, in the other case, 2021 (Rev. Cív. 1074848-34.2020.8.26.01004), in which the heirs of her deceased had recognized the authority to restore the profiles and over, especially in the character of the emotional and symbolic of the legacy of the digital world.
Examples of international, will also help to illustrate the diversity of approaches to the subject.
In Germany, in the year 2018, the BGH – the Bundesgerichtshof, the Federal Court of Justice, in German, gave judgement in the case of (III ZR 183/175, in which the parents of a 15-year-old, who died after being hit by a train), seeking access to the content of your account from the Facebook of her daughter, to make clear whether it would have been suicide. The social network was transformed into the profile of the mode ‘memorial’ by blocking the access to the full. The BGH held that the contract with digital to follow the general rule of succession, as provided in §1922 of the civil code (BGB – German Civil Code (bgb, and it was decided that the heirs have the right to access your data, to compare it to the chart or on a daily basis. In addition to this, it is considered invalid in terms of Facebook, which prevented this, stating that it did not take precedence over the right of succession when you do not have the will to the contrary is given by the owner’s death.
In the United States (2017)6 a court of Pennsylvania, authorized the parents of a teenager who had committed suicide, to being able to access their accounts on social networks, on the grounds that it might contain evidence of the bullying, and other factors that led to his death. The court accepted that these accounts contain data and data-to-face interactions, amounting to digital property that may be transmitted. The decision was based on the laws of the state of the Spanish succession, and specific guidelines on access to digital after-life, such as the one contained in the RUFADAA – the Revised Uniform Fiduciary Access to Digital Assets Act, which was adopted by the several states in the united states.
In the United Kingdom in 2016, a 7, a court has examined the case of a child; but he had a wallet for bitcoins, leaving you with specific instructions on how to access the criptoativos. In spite of the absence of a will, the digital, and justice has recognized the asset as a part of your heritage, and it is up to the heirs of the law, they are to be administered with the support of a technical expert to gain access to the codes, standards.
In Brazil, TJ, state of minas gerais, in the year 2022 (whether the instrument of Cv 1.0000.21.190675-5/001)of 8, he decided to give the inheritance, the power to integrate the collection, provided that you have an interest in the legal or economic legitimate, but it has also underscored the limits imposed by the protection of privacy.
The national case-law that is still in development, and the solutions vary depending on the type of data, the value of the equity involved in the expression of the will of the deceased. The statement of 687 for the IX-journey of a Civil-Law of the Board of the Federal court9 to reinforce this view by stating that the digital heritage can include the estate of the deceased, and to be the subject of testamentary disposition, or by codicilo.
So, the best way to prevent problems is to plan for it. Include directives on the fate of your digital assets in a will, appointing a trusted person to manage the collection, check out the options offered by the online platforms are the steps to make sure that your wishes will be complied with.
However, in the writing of a will, it is essential to think seriously about protecting the privacy of messages and data on the personal front, there is the possibility that this information may become crucial in order to clarify the circumstances of the suspicious or violent deaths. Think about that for a minute, if that were the case, with a son or daughter that you would like to have access to your messages, which might clarify the truth.
In the case of abusive relationships or domestic violence, for example, digital records can provide evidence of essential responsibility of the perpetrator and to ensure justice. For this reason, it is highly recommended that you established under a will, there is a clause which, in the case of a suspicious death, or violence, the heirs will have access to the digital content that is relevant for the purposes of the research.
This is a safety precaution, it may seem like a distant or uncomfortable, it can also be the difference in between the silence, and the truth. And to ensure that the desire to comply with the law, it is essential to count on the advice of a lawyer. The succession planning of the digital is no longer an option, and it has become a liability for those who want to protect not just his legacy, but also to those of you who are.
Although this is the heritage of the digital still a lack of regulation in a clear and final, and you can change as quickly as possible with a proposal for the reform of the CC, presented to the Senate, and the Subcommittee on the Right of the Digital world. It also contains a chapter about the Digital Heritage recognizing nature as a set of intangible assets that have value, in economic, personal, and cultural. The reform proposes, for example, which is the property of digital property to be passed on, usually according to the rules of succession are already in place. Since the digital assets we face in everyday life – such as e-mails, blog posts, photos, and profiles that would be, as a general rule, non-transferable, unless there is a demonstration is given by the owner, authorizing the transfer of, especially in order to preserve the privacy of the deceased, and to other third parties.
It also allows the owner, at life, and provides for the distribution of your data, and accounts of digital in their will, including passwords and access codes. These provisions are to be regarded as standard contractual clauses, or of a will-formal, if proven. Even so, it is expected that the access to the private messages will depend on the court order based on a just cause, even after his death. The system further provides for the exclusion of the public accounts of the deceased without heirs, within a period of 180 days. With this, the goal is to prevent the digital platforms, such as Facebook or Instagram, they have become, in practice, a product, universal, of the digital assets.
These quotes highlight the urgency of each and every individual to take control of your digital legacy by setting clearly defined by means of a will, and the fate of their data, assets, and of the interactions in the virtual environment. The informational self-determination – that is, the power to decide on the use of and access to information – it is in the center of this change in the legislation, and the role of the lawyer is even more essential in order to ensure legal certainty and respect for the will of the owner.
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