germany:-federal-court-of-justice-clarifies-scope-of-postmortem-access-to-social-media-accounts

Germany: Federal Court of Justice Clarifies Scope of Postmortem Access to Social Media Accounts

(Sept. 30, 2020) In a decision published on September 15, 2020, the Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s supreme court for civil and criminal cases, clarified the scope of access to the Facebook account of a deceased person. Following its decision in July 2018 in which it held that user agreements for digital social media accounts are inheritable, the Court ruled that the parents of the deceased user must be given the same access rights as the original user. Providing a USB flash drive with a PDF document containing the account data is insufficient in the opinion of the Court.

Background

The plaintiffs’ 15-year-old daughter was fatally injured when she was hit by an incoming train under circumstances that are still unclear. (BGH, III ZR 183/17, para. 3.) The plaintiffs unsuccessfully tried to get access to her user account with her login details to determine whether she was harboring suicidal thoughts before her death. However, the defendant, Facebook, had turned their daughter’s profile into a so-called “memorial page,” meaning that access to the user data was not possible even with the login details. (Paras. 4, 5.) In its July 2018 decision, the Federal Court of Justice stated that the user agreement between Facebook and the deceased is a contract that passes to the heirs by operation of law according to section 1922, para. 1 of the German Civil Code. It held that the parents of the deceased daughter therefore have a right to access the account and its digital content.

Facts of the Case

On August 30, 2018, Facebook provided a USB flash drive with a 14,000-page-long PDF document containing the unstructured account data of the deceased to the parents. The parties disputed whether this action fulfilled the obligation of the defendant arising from the 2018 judgment of the Court to grant access to the user account. (BGH, III ZB 30/20, para. 3.)

Decision

The Federal Court of Justice held that “providing access” to the user account of a deceased must enable the plaintiffs to access the account and its content in the same way as the deceased, with the exception of actively inputting content. The Court stated that “accessing” (Zugang in German) means “going into the account” (hineingehen), not merely transferring the content of the account to the plaintiffs. Access to the account data is therefore not enough; there must be access to the account itself. As the user agreement passed to the plaintiffs by operation of law, they cannot be treated less favorably than the decedent, the Court ruled. (Paras. 11, 15, 17.)

The Court pointed out that the defendant has the ability to reverse the “memorial page” setting of the user account and that the plaintiffs showed no intention of planning to actively use the account of their deceased daughter. In the opinion of the Court, asking for such an action from the defendant is not unreasonable as the defendant may rename the account or take similar actions to alert other users of the social network that the account is now being used by the heirs and that automated messages or alerts are not from the deceased daughter. (Paras. 46, 47.)

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